Thursday, February 9, 2012

Week # 1: Bushmen Tribe - South Africa and the Right to Water - S.B.H.

The Bushmen are indigenous people of Southern Africa whose ancestral lands are inside the Central Kalahrai Game Reserve.#  In 1996, the Government of Botswana implemented a policy forcibly remove the Bushmen from their ancestral lands.#  The Bushmen people have since been fighting to regain access to their land.#  

Around the same time, the Government granted diamond-mining licenses for the reserve and required water boreholes to  “be utilized strictly to provide water for the mine.”#  The result is the denial of water to the indigenous Bushmen people.#  In addition to the struggle for their land, the Bushmen people have requested the reopening of the existing borehole on their land or permission to drill another borehole for water. #

In terms of the removal of the Bushmen from their land, the Government of Botswana has argued it was necessary to protect the environment inside the Reserve and develop its people outside the reserve.#  However, history shows that after 1967 when DeBeers geologist discovered diamonds in the Kalahrai region the core of Botswana’s economy became diamond mining.# Now over two-thirds of the Governments revenue is from the diamond industry.#

In the case Sesana v. Attorney General, the Bushmen argued before the high court that the Government should be required to (1) reinstate their access to water in the reserve and (2) restore the lands to the lawful possession of the Bushmen.#   Two and a half years later the court decided that (1) since the Bushmen were informed that their services, including access to water, would be cut off, then the government was not obliged to reinstate them.# Additionally, the court held the Bushment are indigenous to the Reserve, thus indicating their lawful possession of the land.#

“In recognizing that the San community was “legally in possession of its lands,” one of the judges on the High Court referenced cases from the High Court of Australia that referred to common law and Native Title Doctrine. [FN205] National courts have increasingly acknowledged “that indigenous peoples' land rights are grounded in their pre-existing customary laws which have survived colonization,” suggesting “the emergence of a unified jurisprudence on what could be labelled [sic] as a doctrine on ‘indigenous title.’ “ [FN206] The High Court's decision to reference international cases demonstrates growing international recognition of Native Title Doctrine and the willingness of courts to access cases from around the world to reach their verdicts. The ruling of the High Court of Botswana adds to this growing jurisprudence.”#

In the Sesana case the Bushmen were denied access to water.  However, the Bushmen filed another case in the High Court regarding their right to access water inside the Reserve. In 2002, the borehole was sealed as per the policy to only allow water usage for diamond mining and to force the Bushmen out of the reserve.# The Bushmen’s hearing in this case was held on June 9, 2010 and the request was to either reopen the existing borehole or grant permission to drill another borehole at their own cost.#  On July 21, 2011, the High Court ruled against the Bushmen; Justice Justice Lakhvinder Walia stated that the San “have become victims of their own decision to settle an inconveniently long distance from the services and facilities provided by the government.”#  In January 2011, the Bushmen appealed the decision of the High Court (along with the support of an organization entitled Survive).#  The Botswana Court of Appeals reversed the rulings of the lower court, the panel of 5 judges held that (1) Bushmen have the right to use their old borehole to access water; (2) the Bushmen have the right to sink new boreholes to access water; (3) the government’s conduct towards the Bushmen amounted to “degrading treatment;” and (4) the government must pay the Bushmen’s cost in brining the appeal. #  

Other considerations

  • Review the UN Report that details the conditions of the Bushmen People
  • Obtain the Ruling - unavailable as of right now.

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