The South African indigenous Khoi Khoi and San communities of the Cederberg region have concluded an industry-wide Access and Benefit-sharing Agreement concerning the commercialization of Rooibos leaves as herbal tea. An Access and Benefit-Sharing Agreement is a legal tool ensuring equitable sharing of resources, including the monetary value these generate. It stems from the Nagoya Protocol of 2010 which serves as a supplement to the 1992 United Nations Convention on Biological Diversity (CoB) which South Africa ratified in 2004 nationally by adopting the National Environmental Management: Biodiversity Act and further detailed in the Bioprospecting Access and Benefit Sharing (BABS) Regulations of 2008  . The Nagoya Protocol seeks to implement the CoB’s objective of “fair and equitable sharing of benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.”  and explicitly extends the application of Access and Benefit-sharing Agreements to traditional knowledge. The CoB defines traditional knowledge as "knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity" .
The negotiation of the Access and Benefit-Sharing Agreement between the Indigenous communities and the national Rooibos industry represented by the South African Rooibos Council (SARC) lasted nine years . In 2010 the South African San Council initiated the process of negotiations by sending a letter to the South African Minister of Environmental Affairs claiming the right to “primary traditional knowledge” of the uses of Rooibos and making a case for ongoing bioprospecting . It based its claims on the South African Biodiversity Act and the Nagoya Protocol. The National Khoi and San Council joined the negotiations in 2012. The Council was established in 1999 by former President Nelson Mandela and represents several indigenous communities in the Cederberg region, namely The San, Griqua, Nama, Cape Khoi and the Koranna . After several meetings, the South African San Council and the National Khoi and San Council concluded a Memorandum of Association in 2013. Recognizing their shared claim to “traditional knowledge”, the partnership consolidated a strong negotiation position for the united Indigenous people . Throughout the negotiations, facilitated by the South African Department of Environmental Affairs (DEA), it had to be determined whether the Indigenous communities of the Cederberg region are the traditional knowledge holders of the uses of Rooibos . On one hand, the national Rooibos industry questioned whether the knowledge of making herbal tea from Rooibos leaves was held exclusively by the Indigenous communities or whether knowledge was shared with European settlers. They argued that the Indigenous peoples did not discover Rooibos’ commercializing opportunities as herbal tea . On the other hand, the Indigenous communities represented by the Environmental NGO Natural Justice claimed recognition as the traditional knowledge holders. The Rooibos plant exclusively grows in the South African Cederberg region. They claimed it to have long been used by the region’s Indigenous peoples as an antidote to allergic reactions, an energizer, a source of nutrition and a healing substance. Their claims were supported by academic scholarship   . Additionally, the South African government conducted a community-based study wherein it finds the Khoi Khoi and San peoples to be the traditional knowledge holders. The study details the history of knowledge on the uses of Rooibos, which was passed orally from generation to generation and shared between tribes of Indigenous peoples of the Cederberg region. Only later, the land was occupied by European settlers who commercialized Rooibos based on the traditional knowledge of Indigenous peoples  . The absence of a clear historical record therefore merely highlights the suppression of the region’s Indigenous peoples who not only suffered from displacement, dispossession and more adversities through the arrival of colonial authorities but were further subject to discrimination under the apartheid regime . Moreover, the commercialization of Rooibos since the early 20th century necessitated unprecedented scaling of Rooibos plantations which carries potential adverse ecological consequences, among these potential land degradation through the introduction and expansion of mono-cultures and the use of chemicals . Thereby, the Rooibos industry engages in new unsustainable use of biological diversity.
Finally, on March 25, 2019, the Khoi Khoi and San peoples were recognized as traditional knowledge holders of the uses of Rooibos through an Access and Benefit-Sharing Agreement of novel extent. The agreement is supplemented with the Biocultural Community Protocol, a policy document which adds historical context and sets out practical procedures to ensure Access and Benefit-sharing. The Access and Benefit-sharing Agreement transfers earnings from commercial activities of the Rooibos industry to the Indigenous communities which they can invest for community purposes . (See less)