Traditional and Khoi-San Leadership Bill Hearings
28th November 2016

Summary

Prosperity, Peace and Justice be upon you.
The inexcusable and outrageous clarification of the KhoiSan First Nation Status to parliament last week by Deputy Minister Obed Bapela must persuade all of us as the collective South African community in condemning his comments and allegations. We quote: “Let’s not go into the temptation of giving ‘Them’ the First-Nation Status.” (Source: http://www.news24.com ) We submit that the Deputy Minister Bapela mentioned the word ‘Them’ in a condescending, arrogant, egotistical and disrespectful manner. Indigenous First Nation Advocacy South Africa (IFNASA) calls on the Deputy Minister to ‘Apologize’ unreservedly to the KhoiSan-Coloured Nation at the outset of today’s hearings? IFNASA is furious by his self-absorbed behavior.
IFNASA believe that the entities with which we engage, particularly government, are fabricating by default the terms and conditions of a ‘Novel Agreement’. A Negotiated Settlement Agreements must involve the Indigenous First Nation as “Mutual Partners”, oppose to being mere ‘Participants’, the terms and conditions of the agreements should become the building blocks of arrangements that are inherently more just than the imposed administrative solutions to which us as the First Nation of SA had so long been subjected too.

Currently, there is no recognition of how Coloureds lost their identity and the relationship to their ancestral Land, which forms the basis of the Indigenous First Nation’s Identity, and that our indigenous peoples’ cultures cannot be preserved without a certain degree of Control over Land and natural resources, which remains mysterious in SA. During the colonization progression, however, indigenous peoples (Coloureds) lost identity, ownership and control over their ancestral language, lands, culture, heritage and from the end of the 19th century onwards the existence of inherent indigenous land rights, i.e. rights not derived from the colonial powers but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial, had been completely denied. The TKSLB does not offer accurate historical context, infect, the Bill starts talking about Khoi-San in a vacuum? The KhoiSan community ‘Never’ had the opportunity to effectively deal with the genocide meted against their ancestors, why? Our increased pressure with the support of international institutions, must force our government to start recognizing the Coloured identity through the existence of their inherent indigenous identity and land rights. The continued denial of the government regarding Coloured people’s link to their KhoiSan ancestry defeats the entire Bill Recognition process.

Our presentation highlights how the Indigenous First Nation or KhoiSan Land Rights should be recognized and protected if the South African government seriously want to address the legacy of both colonialism and apartheid. It’s important to address such rights in the context of all Indigenous Africans of South Africa too. Governments like the United States, Canada and New Zealand develop generous studies on First Nations and all these countries acts completely different in the execution of their respective recognition of First Nations and its obligations under international law, but nevertheless, all these Governments have some ground breaking undertakings regarding the realization and protection of their indigenous people’s land rights, while South Africa can learn from these country’s experiences. Our government and the KhoiSan leaders negotiating with the state need to understand the importance of comparative analysis. The Canadian constitution section 35 opened the door for negotiating and implementing the inherent right to self-government, and this move shifted the sovereignty discourse towards an academically and legally accepted assumption that Aboriginal self-government is a Constitutional right. The devastating remarks of the department of Cooperative Governance and Traditional Affairs Deputy Minister Obed Bapela against the KhoiSan First Nation Status claim, in parliament last week affirms that the government stubbornly persist with the annihilation project which started with the colonial invasion.

We quote: “Let’s not go into the temptation of giving ‘Them’ the First-Nation Status”. Who is ‘Them’? Why should ‘Them’ not get First Nation Status? What is the ‘Secret’ about ‘Them’? We submit that the Deputy Minister Bapela mentioned the word ‘Them’ in a condescending and disrespectful manner.

While the Deputy Minister speaks out of anxiety and obliviousness, notably Canada recognizes that the inherent right of self-government is an existing aboriginal right under their Constitution which includes the right of indigenous peoples to govern themselves in matters that are internal to their communities or integral to their unique cultures, identities, traditions, languages and institutions, and in respect to their special relationship with their land and their resources. This right of self-government includes jurisdiction over the definition of governance structures, First Nation membership, family matters, education, health and property rights, among other subjects; however, in order to exercise this jurisdiction, agreements must be negotiated with the federal Government, in the Canadian context. The SA constitution implore that the lawmaking agencies consider international law when developing local laws. The South African government continue to reject the claim of the KhoiSan Sovereignty, because they simply never allowed for honest discussion and research. The majority of the KhoiSan Nation have no clue what Aboriginal Sovereignty means. Sovereignty can be expressed both in the sense of literal separation and in the sense of recognizing and legitimizing inherent Aboriginal claims to land, identity, and politics (Maaka and Fleras, 2005: 37).

The early definition of Aboriginal sovereignty was expressed by the Federation of Saskatchewan Indians in the 1970s as the inherent and absolute right to govern, where the state has power to which “none other is superior or equal” (Maaka and Fleras, 2005: 49). In the Aboriginal context specifically, sovereignty is a concept that is “founded on an ideology of indigenous nationalism and a rejection of the models of government rooted in European cultural values” (Alfred, 2001: 26). An important component of Aboriginal sovereignty is the rejection of “conventional forms of ‘Western’ society-building associated with multiculturalism, individual rights, and universal equality” (Maaka and Fleras, 2005: 7). Claims around sovereignty challenge the “colonial agendas that have had a controlling (systemic) effect in privileging national (white) interests at the expense of indigenous rights” (Maaka and Fleras, 2005: 13) and instead privilege the right of a nation to define and act on its politics without interference from other sovereign nations.

The definition of sovereignty can be problematic. Many Aboriginal scholars recognize the European roots of the term and associate with it the necessary existence of a unitary, official, coercive political body or a head of state; the British tradition of political thought that bore the concept of sovereignty is perceived as dissonant or incompatible with many Aboriginal concepts of governance. As Alfred explains, the European understanding of sovereignty in statist and institutional terms creates a danger for Aboriginal people using the term to further their claims, because in doing so, they “are making a choice to accept the state as their model and to allow indigenous political goals to be framed and evaluated according to a ‘statist’ patters. Thus the common criteria of statehood … come to dominate discussion of indigenous peoples’ political goals as well” (1999: 56–57).
It is our endeavor to assist the KhoiSan Nation better understand the doctrine of sovereignty which must remain a central focus as we unpack the different dimensions and the true meaning of the word which must be thoroughly explored in an effort to understand the challenges inherent in framing our First Nations’ self-determination narrative in a South African context. Accordingly, this submission takes as its departure point the existing and legitimate right of Aboriginal self-government. In Canada and Norway we are witnessing commensurable processes of social structural change which to a large extent are directed towards improving, on a broad scale, the conditions for indigenous peoples within these nation states.

IFNASA advance that the indigenous systems hold key components of how to substantively change the lives of all South Africans for the better. Clarification of rights (which SA lacks) and the establishment of cultural and political autonomy for the KhoiSan, based on formal recognition, form the main content of such improvements. In Norway the Sámi have been subject to a comprehensive inquiry on rights carried out by the Sámi Rights Commission, appointed by the Norwegian government in 1980. This Commission, an investigation of the northernmost part of Norway (Finnmark), has delivered five substantial reports (NOU 1984, 1993, 1994, 1997a, 1997b; these amount to 2,490 pages in all), including proposals for new legislation. The last published report appeared early in 1997, and deals with Sámi rights to land and water. A report connected to the Sámi Rights Process, but independent of the official Sámi Rights Commission, was published more recently, adding 692 pages to the bulk of documents produced so far (NOU 2001). Why does the South African government persist in ignoring the glaring deficiencies or deficits within the Bill content and context?

As we conclude, it is noteworthy to mention that from the mid-20th century most governments completely disregarded demands by indigenous peoples to have their inherent rights to their ancestral lands recognized and protected, this began to change after the Second World War. Under the impression of the unprecedented scale of atrocities committed against parts of the own population in National Socialist Germany, there was a general agreement among governments that never again shall a State become an instrument to suppress and marginalize certain minorities. The comments of the Deputy Minister Bapela compete against international best practice which is gaining stimulating traction. The Deputy Minister is unashamedly advancing the perpetuation of the massacre of identity slaughter against the Coloured-KhoiSan Nation in the name of defending South Africa’s sovereignty? In the wake of the decolonization demands by the South African tertiary students and processes within the US civil rights movements and the growing importance of human rights, governments and societies must begin to realize that in the past great injustices had been committed against indigenous peoples, especially the so called Coloureds and the keyword of ‘Settlement’ must be taking center stage in the relationship between our national government and indigenous people of South Africa. In the course of this TKSLB development, the government moved further away from the view that the Indigenous First Nation and the Indigenous Black Africans of South Africa are not primitive and backward societies which for their own good had to be assimilated into mainstream society. Instead, it became increasingly accepted that indigenous cultures had and have an intrinsic value and are to be preserved for the benefit of all.

Our government should recognize that ownership and control over Indigenous Land and resources could and should not only help to solve the massive social and economic problems South Africans and Indigenous First Nation faces, but also that a certain degree of self-administration and control over land and resources are essential to ensure the survival of Indigenous First Nation and the entire South African. Our government only recognized a moral, not a legal, obligation to realize and protect our Indigenous Land Rights. Consequently, our governments remains hesitant in addressing our Indigenous First Nation Status claim. Hopefully it will changed with the emergence of the Modern Aboriginal Title Doctrine internationally, which will find its final expression in the South African society. Assist IFNASA in aiding the government find their intelligence. Help stop the Failed Justice meted against the Indigenous First Nation of South Africa.

Objections
Indigenous First Nation Reject the Bill Out-right because:
o The content, context and the process was inconsistent with the administration of a justice, while being unsound and ill-conceived.
o The TKSLB does not Recognize the Coloured Identity Morph (transform) and the conscious annihilation project by the Colonial rule, the Apartheid regime and the current marginalization of the KhoiSan-Coloured Nation under the protection of a purported world class constitution.
o The Bill rejects the Land Lost and Identity, Language Destruction of the Indigenous First Nation of South Africa by colonization and apartheid.
o The TKSLB does not provide empirical evidence of why the KhoiSan cannot be afforded First Nation Status.
o The TKSLB does not make mention of Constitutional Amendments to accommodate the KhoiSan.

Ultimately, by focusing on customary law discourse, the duality between tradition and modernity, and how it is managed, may, moreover, be uncovered during the hearings. We require this focus because of a continual dialectic (or conflict) between Indigenous First Nation doctrine, Traditional Title, concepts covering Indigenous and Traditional Knowledge and Customs, and modern life conditions.

These discussions on Indigenous and Tradition titles need constant renewal and reinvention by the Indigenous people themselves and engage government with the results. We plead with the government to develop a comprehensive or all-embracing methodology on all indigenous submissions. In this way the government could represent part of modernity, as they find new innovative ways to address their fears regarding First Nation Status and or Sovereignty. Our intention is not to reduce or extinguish the firm handle government should hold on the leadership of the country, instead, they should first allow us to study Aboriginal Title elsewhere. We believe that the focus on indigenous customary law and indigenous land rights discourse will contribute to unfolding and explaining the dynamic force of customs and traditions.

We have a collective responsibility to bring the new world we all envisage. Let us Stop the Failed Justice!
Our Questions
o We request that Deputy Minister Obed Bapela explain his comments and assumptions on the unsustainability of a KhoiSan First Nation claim?
o What are his assertions based in?
o Does the Deputy Minister have empirical evidence to support his eccentric interpretations?
o Why does the South African government persist in ignoring the glaring deficiencies or deficits within the Bill content and context?
o Why didn’t the department of Cooperative Governance and Traditional Affairs (Cogta) started the conversation of Identity and the Bill recognition amongst Coloured people?
o Would Cogta consider National Dialogues of Coloured people to first understand their indigenous culture and heritage discourse so that they can meaningfully participate in the hearings?
We believe that there is still an opportunity take hands and take a new direction as the collective Nation.
Regards
Yvette Mc Donald
IFNASA Springbok Co-ordinator
Indigenous First Nation South Africa Mass Movement (IFNASA MM)
+27 (0) 78 042 1988