Update on the protection of Phiphidi Fall Sacred Site, Venda, South Africa

The story so far…

The story began in 2005 when some of the women in the Venda community began to take action to revive their rich traditions. They initiated a number of activities with elder women and men knowledge holders to analyse and reflect on the past, what is happening to their way of life now and what they could do about the problems they face. Out of this process they identified the degradation of sacred sites and the obligatory practices associated with them as one of the root causes for the disorder in their community. They intensified their work to revive the knowledge and practices with the sacred sites guardians, who formed Dzomo la Mupo (voice of the Earth) - a sacred sites committee led by the Makhadzis (elder women custodians) in 2008, to have an organisational base from which to coordinate the growing movement with communities around this work.

Over the past 2 years the Ramunangi traditional practitioners, who are part of Dzomo la Mupo, made many attempts to communicate with traditional leaders and local authorities about the picnic site in Phiphidi Fall Sacred Site, which had resulted in deforestation, littering and a gate which prevented the custodians from entering their site freely. According to the custodians, who have been acknowledged as the guardians of Phiphidi Waterfall since before records began, such public activities in a sacred site are a violation of traditional law. This tourist site has prevented the Ramunangi from carrying out their rainmaking rituals, which are a vital part of the ritual cycle connected to the network of other sacred sites and the territory as a whole. Their appeals were ignored.

In November 2009 - benefitting from support provided by CTA, the Gaia Foundation and the African Biodiversity Network (ABN) - the Mupo Foundation (which formed in 2007 to support this work), hosted an eco- cultural mapping process, in which Dzomo la Mupo and a number representatives of other communities were involved. Together they mapped the network of sacred sites embedded in the sacred territory of Venda.




The Makhadzis have continued the mapping process with each of the communities since, as a way of deepening the collective knowledge and understanding of communities about their territory and the ecological laws embedded in it and reflected in their traditions.

In April 2010, bulldozers moved into Phiphidi Sacred Site. Why? To build a tourist complex with accommodation, roads and a bar to serve alcohol. This is obviously unacceptable.

The Ramunangi custodians were left with no choice but to take the matter to court. They were supported by Dzomo la Mupo – as the violation of one sacred site affects the viability of the whole network of sacred sites as well as the territory. Hence their strong solidarity in working together to protect all the Venda sacred sites as a system.

Court interdict – moral and legal victory

On 25th June 2010 Dzomo la Mupo and the Ramunangi custodians applied for an urgent court interdict which the High Court heard on 6th July. Over 80 members of Dzomo la Mupo and the Ramunangi, all proudly wearing traditional dress and their Dzomo la Mupo badges, attended a packed court.

One of the Defendants, ‘king’ Tshivhase’s Foundation Development Trust, denied the site was sacred, and denied that the Ramunangi are the custodians entrusted with the duty to take care of Phiphidi Waterfall. Chief Kennedy Tshivhase also denied that the Ramunangi have legal standing in court. After a full and emotional first day, the judge agreed to the respondents’ request for an 'inspection in loco' - to inspect the development in the sacred site. Respondents argued that the development in no way impinged on the actual sacred site, and should not be stopped.

On 7th July, Judge Mann of the High Court, granted the urgent court interdict and ordered development on the Phiphidi Sacred Site to stop, and also for the respondents not to purport to represent the community in decisions relating to customary use of land, or grant land rights over the sacred site. The judge granted the irrevocable order pending application by the custodians for a full court hearing.

The judge agreed with the custodians that the whole site is sacred - ‘In the same way a church building is regarded by some as a holy place, even though the rituals are done only at the altar’, and that building chalets would cause grave offence to those worshipping at the holy place.

Testimonials from the Ramunangi Makhadzi and Dzomo la Mupo, expert witness statement, evidence such as the community eco-maps, and explicit recognition on Government websites, significantly influenced this decision. The judge also recognised the Ramunangi as the custodians of this site with legal standing, acting on behalf of their particular religious or spiritual community and also in the public interest. The judge recognised their cultural and spiritual rights under the South African Constitution and their right to environmental protection under national law. Further the judge also found the permission to develop had expired and the development planned presented an obvious and imminent threat to the integrity of the sacred site.

Following the verdict, members of Dzomo la Mupo celebrated together with the many local people who had gathered. Mphatheleni Makaulule, from Dzomo la Mupo, said:

We are ululating from today for up to a month. We won the interdict after the high court spent two days focusing on sacred site protection versus developers. Finally after the judge visited the site and witnessed Makhadzis of Ramunagi performing rituals, the judge said the sacred site must not be disturbed…The judge could see for himself that the whole forest was sacred, like a church, where not only the altar but the whole surroundings is sacred. The ancestors are with us, the development must stop. The truth of Mupo cannot be buried down.

On 4th August, the custodians and legal team formally applied to the High Court to challenge and set aside the permission granted to develop Phiphidi Sacred Site and assert their custodianship rights and responsibilities. The respondents have been served notice and have yet to provide important information on the name of the developer and a copy of the EIA. The court process could take up to 2 years. Development continued even after the court interdict but has now stopped after a warning that this would be in contempt of court and would lead to further court proceedings.

This case so far has affirmed two important principles:

• respect for custodians’ cultural, spiritual and traditional rights and responsibilities to protect their network of sacred sites and to continue their traditional practices
• the ‘King’ is not above the law.

Other dimensions of the story...

Custodians - strong and united

The Makhadzis are now stronger and more confident in their commitment to protect and heal the interconnected network of sacred sites. Empowered by the eco-mapping training and court verdict, the custodians are reviving and practicing their rituals with growing local support. Community dialogues, meetings and intergenerational learning processes continue to strengthen community cohesion. Dzomo la Mupo are increasingly recognized as the traditional custodians by the local people and the relevant authorities, and their membership and profile is growing.

Local and international media coverage raises public awareness and support

The whole proceeding of the court case was covered by the local radio station, which is listened to widely. There has been a high level of public participation with live public phone ins. The public heard the “ king’s” advocate deny that the Phiphidi falls is a Sacred Site. This caused outrage as it is widely recognized as such and is in all the government tourist information.

The story of the destruction of Venda’s network of sacred sites, by tourism development and broader context of land grabbing, received wide media coverage in South Africa, UK, US, Canada and Australia. It was covered in print, radio, online and on television, including African news, Pambazuka and the BBC World news.

‘King’ Tshivhase is not king

Chief Kennedy Tshivhase has been claiming that he is the legitimate king of the Venda people in a battle for kingship that has gone on for many years. A commission was set up by the South African Government some years ago to look into issues of kingship in the country, as similar disputes exist in other communities in South Africa.

Much to everyone’s surprise President Zuma announced the results of the Nhlapo Commission on the 29th July 2010, without much warning that he was going to do so. He announced that ‘king’ Tshivhase was not the legitimate king of the Venda people. The VhaVenda kingdom would remain a paramount chieftaincy with Toni Mphephu-Ramabulane as the paramount chief. As the announcement came shortly after the Ramunangi/Dzomo la Mupo had won the interdict to stop the development of the Tshivhase’s project in Phiphidi, many have associated the two. The Venda people believe the courage of the Ramunangi clan and Dzomo la Mupo custodians in challenging the untouchable ex-king, through working with their ancestors, is now being rewarded.

The public discourse on the radio showed that people admired the custodians for challenging Chief Kennedy Tshivhase, as no one had dared to previously, for fear of intimidation. The Ramunangi and Dzomo la Mupo had not been daunted by the intimidation they were subjected to. The local people freely spoke about the corruption and how the commercial interests of Chief Kennedy Tshivhase are destroying “ Mupo.” The Makhadzis are thrilled to hear the powerfully significant word “Mupo “ coming back into public use through this series of events.

International Solidarity

There has been wide support for the Ramunangi and Dzomo la Mupo which was very important at certain critical junctures along this path - there is still further to travel! They are very appreciative of the solidarity they have received from around the world. Many supporters have written statements, which have been used in community meetings and in the court case, and are now on the web.

Others have provided much needed financial support - more is still required for the next phase.

Various networks have circulated information and helped with media coverage and technical support, all of which became important to ensure the custodians’ case was in the public domain as a deterent to further intimidation.

Next Phase

1. The date of court hearing is still to be announced for the custodians’ application to permanently stop the tourism development by setting aside the authorisation for development and asserting their custodianship rights and responsibilities. The process could take up to 2 years.
2. Continue communication with traditional leaders and local authorities to reach an understanding and a way forward.
3. Dzomo la Mupo is continuing to grow as more custodians come on board encouraged by this case. Public support and interest is also increasing and Dzomo la Mupo is strengthening its capacity to respond.
4. Paralegal training for the communities and local authorities to understand their rights and responsibilities for the protection of sacred sites and regenerating the resilience of the Venda territory, and thereby Mupo.
5. Registration and legal recognition and protection of the network of sacred sites and the wider territory, under national and international law, learning lessons from others in assuring confidential knowledge and the traditional laws of sacred sites networks are respected.
6. Development of community ecological governance plans that reflect traditional customary law.
7. Continue working with custodians to distill the ethical principles underpinning the work to protect sacred sites networks and territories in the present context of growing threats and growing awareness and interest, which itself can result in new challenges.
8. Strengthen international solidarity to develop and refine strategies to protect sacred sites networks and territories.
9. For the next phase further funding will be required and any ideas and support are welcome.

Prepared by Gaia Foundation on 26th August 2010

Sekadau Consensus: Community Mapping in West Kalimantan, Indonesia

The documentary describes a process wherein the Dayak communities in Nanga Mahap, Sekadau District of Indonesia get control and manage their territories and succeed in stopping the expansion of palm oil plantations.

Participatory mapping and spatial planning were used to build new consensus between the communities and the local government at village and sub-District and District level.

The new consensus was built after the communities gained a clearer understanding on the impact of the industrial palm oil plantations on land tenure and on the cultural, economic and ecological sustainability of their villages.

Video and description courtesy Kasmita Widodo, Jaringan Kerja Pemetaan Partisipatif (JKPP).

PCSD endorsement to Macroasia multi-billion giant deferred: an initial victory for NGOs and indigenous peoples

Puerto Princesa - ALDAW - On July 30, over 20 members of the Palawan Council for Sustainable Development (PCSD) - a local government body in charge of the protection and sustainable management of the Province meet to decide whether to issue a SEP (Strategic Environmental Plan) clearance to the mining operations of MacroAsia Corporation (MAC for brevity) with reference to a 91ha area, out of the approved Mineral Production Sharing Agreement area of over 1300 hectares.

The area for which SEP clearance is being sought consists of well-conserved forest which provides clean water to lowland communities and which is also part of the traditional territory of Palawan tribes living in Brooke’s Point Municipality. During the last PCSD meeting, thanks to the support of Atty Grizelda Mayo-Anda (representing the NGOs community within the Council) and through the effective mediation of Governor Abraham Kahlil Mitra, the ALDAW network (Ancestral Land Domain Watch) was allowed to present ‘geotagged’ findings collected in two separate field surveys carried out in collaboration with the Centre for Biocultural Diversity (CBCD) of the University of Kent (UK). In a photographic context, geotagging is the process of associating photos with specific geographic locations using GPS coordinates. GPS coordinates were obtained through the use of a professional device connected to the camera’s hot shoe during the entire mission’s reconnaissance in the hinterlands of Ipilan and Maasin (Brooke’s Point Municipality). The obtained GPS coordinates were later overlaid on PCSD maps to show the overlapping between core zones and MAC mining activities. Overall the findings indicates that: 1) over 95% of test pits and drilling holes in MAC MPSA area are located in “core zones” and biodiversity rich forest, 2) Isolated Indigenous communities are living in the MPSA area of MAC (these have never been consulted about MAC operations); 3) The 91ha for which SEP clearance is being sought by MAC (out of a total MPSA area of more than 1,300 ha) overlap partially with “core zones” and entirely with well-conserved and residual forest. Even more surprisingly, the mission found no evidence of test pits and drilling holes in the recommended 91ha area. “This area includes sacred places where our Palawan indigenous communities carry out their own rituals. Moreover, portions of the Ipilan river and other tributaries which provide potable and irrigation waters to the lowland farmers are also found inside the area” explained ALDAW Chairman Artiso Mandawa.

In a nutshell the joint ALDAW/CBCD presentation clearly demonstrates that MAC mining interests are really concentrated in primary virgin forest. Geotagged photos portray test pits and drilling holes, found around 800m and even above 1,000m ASL. These evidences generated a lively debate amongst PCSD council members. PCSD representative/Congressman Antonio C. Alvarez asked confirmation to MacroAsia spokesman on whether their explorations activities are really located in core zones of “maximum protection”. To the surprise of all participants, MACROASIA representatives did not deny but rather confirmed the evidences brought forward by the ALDAW investigation team. However, they also stated that their permit to explore in ‘core zone’ was legally given by DENR and further endorsed through a SEP clearance by the PCSD. This assertion gave more ground to Congressman Alvarez to challenge Romeo Dorado, PCSD executive director: “a permit to explore core zones is not just a piece of paper, it actually entails the manipulation and disturbance of areas that, in principle, should be maintained free of human disruption. If the PCSD has allowed the exploration of core zones, it means that there is something wrong here” said Alvarez. Director Romeo Dorado clarified that, although the area used by MAC for exploration purposes is mostly located in core zones, the PCSD is only prepared to endorse to MacroAsia 91ha area out of the total MAC MPSA area of about 1300ha. Dorado’s reassurance was unconvincing and raised more questions than answers. In fact, according to the evidence presented by ALDAW team, there are no signs of exploration in the proposed 91hectares, no test pits and drilling holes and – in fact – as it was later confirmed by MacroAsia itself - no valuable minerals are found in the applied area. “What’s the purpose of getting an endorsement for this area, while the minerals that the companies want to extract are located much further in the uplands?” asked Alvarez. Atty Gerthie Mayo-Anda picked up on this argument: “we should really understand the ‘economic implications’ of the 91-hectare area. Surely if the company does not consider it commercially viable to just mine 91 hectares, they would want a much larger area which means that their targets for mineral extraction are really the core zones and the protected area!” said Mayo-Anda. Again, MacroAsia representatives had no valid argument on which to cling and rather admitted that the 91ha area for which SEP clearance is requested will be used as an ‘installation base for the company’. Having said this, MAC representatives provided no information on the exact location where the actual mining extraction would actually take place. During the meeting, Atty. Mayo-Anda further stressed that MAC’s MPSA area is located inside the recently declared Mount Mantalingahan Protected Landscape (MMPL), pursuant to Presidential Proclamation no. 1815. MacroaAsia representatives contested the assertion by claiming that, according to the same Proclamation, any valid contract for the extraction of natural resources already existing prior to the proclamation should be respected until its expiration. According to Dr. Dario Novellino (CBCD researcher and partner of ALDAW) the MAC spokesmen omitted a very important paragraph found in the same proclamation which specifies that areas covered by such contracts, which are found not viable for development after assessment shall automatically form part of the MMPL. “According to our field research, the areas claimed by MAC is not viable for any form of aggressive development, due to its particular ecological characteristics and specific landscape value” said Novellino. Atty. Mayo-Anda further challenged the MAC spokesman by clarifying that “the vested argument is skewed and cannot be sustained. It is well-settled in Philippine jurisprudence that exploration, development and utilization of natural resources through licenses, concessions or leases are mere grants or privileges by the State; and being so, they may be revoked, rescinded, altered or modified when public interest so requires” said Mayo-Anda. While MacroAsia representatives admitted that their concession overlaps with the Mantalinghan Proclaimed area, they also questioned how much of it is really located in core zones. “Part of their defence argument was based on their own subjective interpretation of core zone. They kept arguing that ‘core zones’ are above 1000 m ASL, to prove that most of their exploration and extractive activities are legal, being below that altitude. In reality according to SEP law core zones do not just include areas above 1000 meters elevation but all types of natural forest: first growth forest, residual forest and edges of intact forest, endangered habitats, etc. These are exactly the kind of places where MAC has been concentrating its own mining activities” said Novellino.

To the surprise of both NGOs and indigenous participants, the representative of the Mineral Geoscience Bureau of the Department of Environment and Natural Resources proposed that it would be better to revise the ‘core zones’ rather than challenging the company’s actions and operations. Again this statement ignited the debate even further “ECAN amendment in Brooke’s Point would be inconsistent. Any proposed change to the zoning system should be discussed publically in a Barangay Assembly and in close consultation with the communities. Core zones should be protected rather than amended to accommodate the interests on the mining companies” responded Mayo-Anda and Congressman Alvarez.

In addition to geotagging and ocular inspection, MacroAsia was also challenged on the bases of social acceptability. “It will not be difficult to establish that the people of Brookes Point are overwhelmingly against any mining. This is what we indigenous peoples and farmers have been trying to communicate to the government for the past two years through public demonstrations and rallies but they did not listen” said ALDAW Chairman Artiso Mandawa.

MAC representatives insisted that, as far as social acceptability is concerned, all documentation from the National Council for Indigenous Peoples (NCIP) had already been secured. However, according to Commissioner Atty. Felongco representing the NCIP on the meeting “applications are still pending and no final decision by NCIP has been made. On the contrary, we have been requesting additional documentation to the local government, since two barangays have not yet been consulted”. Governor Baham, chairing the meeting, expressed his discontentment for the NCIP inability to respond promptly to the lack of documentation relating to ‘social acceptability’. “From now on, NCIP provincial office should communicate its findings directly to the NCIP national office. Passing through the regional office, delays the whole procedures and creates anomalies” said Governor B. Mitra. He also posed the question on whether and to what extent previous local government endorsements to MacroAsia would still be confirmed after the forthcoming Barangay election. “I think all these crucial matters should be re-discussed and reviewed by the new barangay administration, as soon as it is elected and become operative” said Governor Mitra. Adding more points to the argument, Atty. Mayo-Anda suggested “municipal government officials should visit personally the area claimed by MAC to get a clear idea of the location, vegetation cover and actual land uses; and such crucial decision cannot be made just by tracing lines on a map”. During the PCSD meeting, also former Congressman Alfredo Amor Abueg Jr. asked the Council for a re-evaluation of all requirements provided by MacroAsia, especially those related to Barangay government, NCIP and to the Province itself. “All previous endorsements given by the local government should now be re-evaluated on the bases of evidences brought forward by the ALDAW team” he said.

Hon. Baham Mitra, Governor of Palawan and newly elected PCSD chairman, finally approved the motion. This entails that the decision to endorse a SEP clearance to MacroAsia is deferred until a multipartite team composed of PCSD technical staff, local government officials, NGOs and Indigenous Peoples’ representatives visits the proposed area and investigates the ALDAW findings and all pending issues raised by the NGO community. The team should also be in charge of determining: 1) the legality of endorsements by local government units; 2) the expected impact of mining on indigenous culture and livelihood; 3) the potential impact of mining on tourism industry; 4) the economic value of the 91 hectares for which SEP clearance is being sought by MacroAsia.

“This is just an initial victory for the indigenous peoples and our NGOs supporters” commented Artiso Mandawa (ALDAW Chairman) at the end of the meeting. “It proves that illicit affairs are not unstoppable, when the evidence brought forward is there to light up every dark corner and to expose all bed practices of mining companies and their political allies” addend Mandawa.

Some reflections on the way forward

The last PSCD meeting agenda has shed light on a number of issues that apply not only to MacroaAsia but to the vast majority of mining companies in Palawan whose operations can be questioned both from the perspective of ‘social acceptability’ and ‘environmental sustainability’. Several major mining projects that are in the pipeline in Palawan have been endorsed by local government officials, but have not been approved by the communties that would host them. Mining incursion in core zones and forested areas of high-biological diversity has already occurred in other areas. Geotagging findings, as those collected with reference to MacroAsia MPSA area, have already been gathered for the concession areas of Ipilan Nickel Corporation (INC) bordering MAC concession, as well as for Bulanjao range, one of the most valuable biodiversity hot spots in Southern Palawan. Here the mining road of Rio-Tuba Nickel Mining Corporation has already reached the highest fringes of the Bulanjao, at an latitude of 859m, causing deforestation, sever soil erosion and damage to the Sumbiling river watersheds. Evidence indicates that also the mining applications of Narra Nickel Mining and Development, Inc. (NNMDC), Tesoro Mining and Development, Inc. (TMDI), and McArthur Mining, Inc. (MMI) - approved through a Financial and Technical Assistance Agreement (FTAA) – and partnering with the Canadian MBMI - will surely encroach into core zones leading to the devastation of precious watersheds, indigenous ancestral territories and productive rice-land. The same applies to the City Nickel company in Espanola municipality and Fujian-Sino Mining Corp in Roax Municipality.

To avoid the transformation of Palawan (the Last Philippine’s Frontier) into a mining destination the following actions would be required.

The Local Government (LGU)

The LGU should ensure that all mining related decisions which are likely to affect local communities and their environment, be discussed with an independent committee formed by indigenous peoples, local farmers, NGOs and IPs organizations’ representatives in order to enhance transparency and accountability in decision making process.

Moreover, the LGUs should stick to their original Municipal Comprehensive Land Use Plans (CLUPs) without trying to reclassify ECAN zones into multiple/manipulative use zones to allow extractive activities.

The PCSD should stop issuing permits to mining companies to operate in ecologically precious and/or fragile areas, since this is in violation with the agency’s own mandate. Even more importantly, PCSD should stop any attempt of changing the definition of core zones and other zones to allow mining activities in forested land. It has already been established that some definitions such as those of ‘controlled use zones’ have been amended by the Council to please big corporations’ interests. For instance, according to the SEP law, in Controlled Use Area – (the outer protective barrier that encircles the core and restricted use areas) “strictly controlled mining and logging, which is not for profit…may be allowed”. Recently the ‘not for profit’ specification has been eliminated, thus opening these zones to commercial extractive activities.

Evidence, also indicate that PCSD maps are also inconsistent with the SEP zoning criteria. For instance, those areas that encircle and provide a protective buffer to the ‘core zones’, rather than being demarcated in blue (the color of restricted-use zones) are demarcated in brown, the color of ‘controlled use zones’ where mining is now allowed. These inconsistencies should be explained and rectified by the PCSD, as soon as possible.

Before, issuing SEP clearances the PCSD should consult indigenous and farmers communities. As of now, this has never been the case.

The Department of Environment and Natural Resources (DENR)

The DENR should stop fast-tracking mining contracts in Palawan. It should make watersheds off-limits to mining, as well as those areas of high biodiversity and endemism, to include Indigenous Peoples’ Ancestral Domains. This should lead to the suspension of all existing MPSA and FTAA until all controversial issues and ambiguities are clarified.

Ultimately, the DENR should solve its inherent conflict of interest caused by its dual functions: on one hand protecting the environment and the indigenous peoples and, on the other, promoting mining. Therefore, it is suggested that the responsibility related to the issuing of mining licenses should be dealt with by the Department of Mines, Hydrocarbons and Geosciences.

The NCIP

NCIP should stop issuing certificate of pre condition/clearances to mining applications and influencing indigenous peoples into endorsing mining projects. NCIP should also ensure that all FPIC processes carried out in conjunction with mining issues are evaluated by an independent body formed by indigenous leaders elected by their own communities, by representatives of indigenous organizations and, if the latter require so, by members (researchers, journalists, advocates, etc) of foreign institutions.

The National Government

The State should call for an immediate halt of mining operations in Palawan since such activities contravene those provisions contained in well-know conventions ratified by the Philippine Gove[e.g. The Convention on Biological Diversity (CBD)], the UN Declaration on the Rights of Indigenous Peoples. The Convention concerning the Protection of the World Cultural and Natural Heritage and; the Convention for the Safeguarding of the Intangible Cultural Heritage.

Ultimately, the National Government should revoke the 1995 mining act and issue a new act placing more emphasis on human rights and ecological balance, while regulating mining for the public interest.

The Provincial Government

In late 2008, the provincial board of Palawan has passed a provincial resolution providing for a moratorium on small-scale mining for a period of 25 years. This local legislative effort is not enough to prevent large scale and exploration activities in the province. The Provincial Government should prove and demonstrate to the National Government that the revitalization of the mining industry is not compatible with the special environmental status of Palawan Island, nor with the PCSD’s primary goal of achieving sustainable development in accordance with the Strategic Environmental Plan (RA 7611).

The UNESCO

Having established Palawan as a “Man and Biosphere Reserve” the UNESCO should play a more incisive and pro-active role, specifically when national governments, such as the Philippines, violate the condition for which such ‘prestigious awards’ have been granted.

Source: ALDAW