- Government officials and companies in South Africa seem to be increasingly using free, prior and informed consent as a box-ticking exercise, says Sinegugu Zukulu, an Indigenous activist and Goldman Prize Winner.
- He underlines that the U.N. Declaration on the Rights of Indigenous Peoples requires States to consult and cooperate in good faith with communities, allowing them the right to say “No” to a project.
- “The distant planning that goes on in ivory towers without our representation ends up going against our wishes,” Zukulu writes in this opinion piece. “The aspirations of Indigenous communities should always be respected.”
- This commentary is part of the Voices from the Land series, a compilation of Indigenous-led opinion pieces. The views expressed are those of the authors, not necessarily Mongabay.
This series, Voices from the Land, brings together opinion pieces led and written by Indigenous peoples from around the world. Through these commentaries, we share our lived realities and reflections on urgent issues shaping our time — environmental destruction, our relationship with nature, and systemic injustice. We write from the heart of our communities, where the impacts of these urgent crises are deeply felt, but also where solutions are rooted. Through this series, we speak from our territories, and ensure our truths are part of the global conversation.
The consultation and participation of Indigenous Peoples are crucial components of a consent process when extractive and development projects affect our lands, waters and resources. This consultation and participation should never be a box-ticking exercise — but increasingly we are getting an impression that it is now exactly being used as such.
The U.N. Declaration on the Rights of Indigenous Peoples requires States to consult and cooperate in good faith with the Indigenous Peoples concerned through the communities’ own representative institutions to obtain their free, prior and informed consent (FPIC) before implementing projects that may affect them.
According to the declaration, the states must have consent as the objective of consultation before any of the following actions are taken: the undertaking of projects that affect Indigenous Peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (Article 32); the relocation of Indigenous Peoples from their lands or territories (Article 10) etc.
But in Mpondoland, located along the east coast of South Africa and about 200 km (124 miles) to the south of Durban, our experience has been very different.
Consultation and participation appear to be done as a way to coopt and coerce Indigenous People to agree to projects that have already been adopted by the state as a done deal. Consultation appears to be more about informing instead of seeking consent from land owners. This approach makes Indigenous People wonder if FPIC is the right tool to rely on.
We, in Mpondoland, feel it is profoundly unjust for the state to impose fully planned projects without truly giving our community the right to say “No.” The state hardly comes to listen to what we envision for our land; instead they only arrive to “consult” after they have already decided on their own plans — plans that disregard our aspirations. The distant planning that goes on in ivory towers without our representation ends up going against our wishes. The aspirations of Indigenous Peoples and local communities should always be respected.
In Mpondoland, we have seen many actions by the state or corporation that plant the seeds of divisions. People get promised jobs in order to entice them to agree. We have witnessed cases where government officials have given tractors and solar geysers or sponsored other projects only to those who agreed to mining at Xolobeni. All these were actions that discredit and weakened those opposed to mining at Xolobeni. Companies and states must cease to sow seeds of divisions in Indigenous Peoples’ territories.
Indigenous People depend on the natural resources on their land. We, as Indigenous Peoples, live in reciprocity with our lands and are key defenders of vital ecosystem services such as clean water and carbon sinks. Too often, transnational corporations enter our territories and have no interest in our wellfare or respect for this interconneted relationship. These companies only focus on their personal gains.
Land sovereignty & environmental protection
Now more than ever, the global community must respect and promote the Indigenous ways of knowing and doing as they often offer solutions to global challenges of climate change and biodiversity loss. It is therefore imperative that the globally community works together to promote the Indigenous People’s solutions to solve some of our global challenges. You can see it in the way we care for the ecosystems that surround us and provide for us.
In Mpondoland, our rivers are still clean and safe to drink and swim in. Our coastline remains free of pollution and abundant with marine life. Our cows can still roam the beach to themselves. Our rangelands still house wide critical biodiversity areas that are protected by our customary by-laws that also ensure good grazing for the livestock. Our way of life and agroecological systems is sustainable and protects environmental quality. It is due to our way of life that our land remains more pristine.
Our land also heals us and has specific areas that are sacred and where medicinal plants grow. Some areas are kept as sacred spaces for the spiritual needs of our People. These areas could be the ocean, natural pools, forests, rivers, etc. These herbs are collected to treat ailments, serve as lucky charms or, in some cases used for spirituality or cultural ceremonies. You mainly find these herbs in undisturbed areas. Certain practices must be observed to show the deepest respect for the environment that provides these herbs and ensures sustainability. To give one example, when taking a piece of bark for medicinal purpose one must do so from the north facing side of the tree to ensure quick recovery from the tree.
Thatch grass for our huts comes from these cared-for ecosystems and as a result, certain areas are protected to continually provide this resource. Forests also provide some building materials for roofing, therefore protection of forests is paramount. Wetlands do not only provide medicinal plants but are also critical in the food production for the community. Certain crops are grown in the wetlands, as wetlands provide refuge areas against droughts. Early crops (such as taro and yams) that are planted in winter are able to grow in wetlands due to soil moisture that is permanently present. Wetlands are also the main source of springs that provide water to People.
It is therefore in the interest of all People in communities to protect these ecosystems to ensure water security for the current and future generations. For all the above reasons it is therefore clear that protecting wetlands is a form of nature-based solution or adaptation to climate change. All these cultural practices mentioned enforce protection of the environment and ensure sustainability of the planet.
Extractive projects in our lands and FPIC
Our community in Amadiba has been engulfed by various extractive projects in the past two and half decades. These have been projects driven by the state and various corporations.
First, came an Australian mining company, Mineral Commodities Limited Ltd., which wanted to mine titanium from our sand dunes along our shoreline in XolobeniWhen they were sinking pipes to take core samples to check the mineral concentration they said they were looking for places where they could drill for boreholes to supply water to the community. That was more than 25 years ago. We still do not have water supply in our area.
For the N2 Wild Coast Toll Road project, consultation did not happen in our traditional courts but was held in schools. This way of consultation avoided the acceptable due process of consultation and the community had to go to court to challenge the process. The consultation also avoided telling People the negative impacts that are likely to follow road construction such as ribbon development (the continuous building of houses and settlements along a road). The community as a result has been waging litigation against the process since 2012 to ensure its voice is heard.
In 2021, our community heard through social media that the government had given Shell plc (formally Royal Dutch Shell) an exploration license for oil and gas in our ocean. No proper consultation attempts with the coastal communities had been made by either government or the Shell plc oil giant. We raised objections as coastal communities, citing concerns for our spirituality and livelihoods.
We ended up having to go to court to stop the exploration as we felt our rights to a safe and healthy environment we were being trampled upon by the state. We also raised our objections due to the state’s disregard of our rights to freedom of religion. Our belief is that our most ancient ancestors reside in the ocean and, as a result, the ocean is a sacred space. We won this court challenge and were able to halt the exploration.
In 2021, we also found out that back in 2013 the state conservation agency in our province signed a deal that gave exclusive rights to a piece of land that we always had traverse and fishing rights to — all without properly consulting us. The Gwe Gwe Beach Lodge Development unilaterally took away our traverse right and rerouted our hiking route through which we take our tourist clients. They imposed new controls requiring us to book if we want to traverse the Mkambati Nature Reserve. They imposed booking fees for visiting waterfalls and imposed high traverse fees for our clients to pay. This is an ongoing battle which is an economic exclusion for Indigenous People on their land.
Future of FPIC in Indigenous territories
States and corporations that are interested in working in Indigenous territories must consult and cooperate in good faith with the Indigenous Peoples concerned through their own traditional institutions before implementing projects such as mining that may affect them. The manipulation and lies, that we believe are being used to undermine and divide and rule local communities and Indigenous Peoples in their territories must stop. Indigenous and local communities must have a right to say “No.”
Consultation process should never be used as a box-ticking exercise but must be used a tool to source the opinions of the local and Indigenous communities. The views, wishes and the aspirations of Indigenous People must always be respected.
The state must begin to see the significance of protecting the lands of Indigenous People to protect biodiversity, waters and natural resources that the communities dependent on. The states must invest in consultation and documenting the visions of Indigenous People on their territories so these long-term visions and plans could be respected and be left intact.
If changes are to happen, they should be led by the Indigenous and local communities themselves. This is what we see as a true “right to self-determination” by Indigenous People. Developmental projects in Indigenous People’s territories must make sense to them, they should not be extractive to benefit outsiders.
These extractive projects must only be allowed to happen when and if Indigenous communities have voted them overwhelmingly “yes.” When and if agreed by Indigenous People, they (private companies) should internalize the costs of doing business and compensate and take full responsibility if degradation has been caused. Cases where state and investors have been found to lie and manipulate Indigenous Peoples to force them to accept must be punishable by law.
In this way will we have a proper free, prior and informed consent process.
Banner image: Amadiba Crisis Committee Protest at Mzamba Beach. Image courtesy of the Amadiba Crisis Committee.
Sinegugu Zukulu is an Indigenous activist and 2024 Goldman Prize Winner who co-led a grassroots campaign that challenged the South African government’s approval of oil exploration permits, citing unlawful consultation processes and environmental risks. He is a director for Sustaining the Wild Coast (SWC).
The series is produced by the collective Passu Creativa, with the support of Earth Alliance, and published by Mongabay.
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