How are the right to food and customary law linked? An Australian and South African comparison – Anna Bulman

Prior to colonisation, African peoples and Australian Aboriginal and Torres Strait Islander peoples lived in close connection with the land and environment, and governed themselves according to their own complex systems of law. With the colonies came completely different legal systems that were imposed onto the captured land, and which failed to properly recognise the existing structures. Fast forward a century or three, and a number of serious food and nutrition-related health issues can be observed in both customary communities in Africa, and in Aboriginal and Torres Strait Islander peoples. This blog article considers the international legal status of customary law and native title, and links the realisation of such rights as a necessary precursor to full realisation of the right to adequate food and nutrition.

A Familiar Scenario

The colonial story around the world is, at its core, much the same.

Step One:     English, Spanish, French, Portuguese or other colonial power decides to expand territorial reach and invades land with existing peoples.

Step Two:    Colony exploits and harms local peoples, whilst extracting the country’s wealth for the benefit of the motherland.

Step Three:    Colony ignores existing systems of laws, to the extent that they do not assist the colony in the subjugation of peoples, and imposes own version of common or civil law, while demarcating new-found territory with arbitrary border lines that mean nothing to local peoples.

Step Four:     Colonial power decides to leave, gets kicked off or colony breaks from motherland and country is left with the imposed legal system and institutions sitting over the top of customary systems by which local peoples choose to live.

There are many theories as to why some colonies are considered motherland success stories (think Australia, America, Canada) and others are not (think many African countries, and parts of South America and South East Asia). Irrespective of why, the fact remains that in all those countries, the first peoples remain decidedly worse off than those who came later. Furthermore, each country struggles with reconciling dual legal systems after the colonial imposition of a totally foreign legal system.

So how has international law attempted to grapple with this discord?

That partly depends on who you are talking about. The term “indigenous” is notoriously difficult to define. On the one hand, indigeneity in the international legal context commonly equates to “first peoples” (Frans Viljoen, International Human Rights Law in Africa (2012), p. 229), that is, a pre-colonisation temporal measurement closely tied to Aboriginality. Australian Aboriginal and Torres Strait Islander peoples, for example, clearly fall within this concept of indigenous.

The situation in Africa is less clear-cut. Indigeneity in Africa is a fairly contested term, given that Africans who lived on the continent before European colonists arrived are all in that sense indigenous. While the African Commission on Human and Peoples’ Rights (African Commission) has developed characteristics for the identification of indigenous peoples in Africa, these can exclude certain groups. For example, some communities are relatively assimilated into the dominant society (albeit on the very fringes), but nonetheless have strong ties with the land and natural resources after generations of dependence on them, and remain marginalised and vulnerable. For further details, see the discussion of the Dwesa-Cwebe communities below. In this context, the broader term “customary communities” is more appropriate, meaning “communities who regulate their lives, and in particular their tenure rights, in terms of customary law”.

There are a number of international documents, both hard and soft law, that protect indigenous systems of law and rights. For example, International Labour Organization Indigenous and Tribal Peoples Convention (which neither Australia nor South Africa has ratified) requires that “[i]n applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws.” The standard-setting, “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples (which Australia voted against in the General Assembly) recognises indigenous peoples’ “right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”.

The African regional human rights system also protects customary law. The African Commission on Human and Peoples’ Rights has recognised that “rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership” are protected under the right to property in the African Charter on Human and Peoples’ Rights (African Charter). The African Charter also protects peoples’ rights to development and natural resources – important rights for protecting communities’ access to their land and resources. In the 2009 decision Endorois, the African Commission recognised the centrality of land and resource access to culture, finding the community had been denied their right to culture through governmental denial of access to land and resources.

How do the effects of colonial legal imposition look in real life?

Take two examples from very distant parts of the world. The first, Dwesa-Cwebe, lies on the remote Eastern stretch of South Africa’s “Wild Coast.” The Dwesa-Cwebe Nature Reserve straddles the Mbhashe River and spans an area of some 3 900 hectares. Until around 1900, a number of customary communities lived within that area and relied on the land and marine resources for their survival and cultural practices. The communities were then forcibly removed in the following decades by the government, in order to create the Reserve, and placed in a number of surrounding villages (together Dwesa-Cwebe communities). In 2000, a no-take Marine Protected Area (MPA) was declared and marine harvesting prohibited.

Figures 1 & 2: Google Maps images of Dwesa-Cwebe Reserve (see green shading in Fig. 2)

Figures 1 & 2: Google Maps images of Dwesa-Cwebe Reserve (see green shading in Fig. 2) South Africa - pic1






The Dwesa-Cwebe communities are very poor. Almost 15% of households in the district record no income at all. They are often only accessible by 4WD vehicles, with very few community members possessing any vehicle at all. While some villages have access to electricity, others do not. Those that do often cannot afford it. Families commonly rely on child or pensioner grants as the sole source of income, at a measly AUD$31 per child per month. Monthly incomes primarily go towards school fees and child care, paraffin for cooking, medical expenses and transport. It is unsurprising that very little is left for food. Diets commonly comprise mielie maize (maize porridge) and imfino (indigenous leafy greens). This is not an adequate diet sufficient to meet the nutritional and calorific needs of growing children or adults.

The land and sea are a part of their culture and customs; the home of their ancestors. People used to fish and harvest other marine resources to supplement livelihoods and household food needs, and forage for imfino and other indigenous foods. However, the enforcement of the no-take status of the MPA from around 2005 prevented them from doing so. In 2015, in response to litigation, the no-take status was amended, but the new access regime remains excessively restrictive and is the subject of a new court challenge. The Government has effectively forbidden access to the forest and the sea.

The second example is basically any remote indigenous community in Australia. For example, Borroloola, is a small town of some 1 000 inhabitants in remote Northern Australia near the Gulf of Carpentaria, 9.5 hours’ drive from Katherine and 13 hours from Darwin. Borroloola is considered a major service location for “grey nomads” and truck drivers, as the “gateway to the Gulf region”. It boasts a post office and supermarket, a hotel/motel and restaurant, petrol station and mini mart, health centre and pharmacy, and caravan park. There are hundreds of remote Aboriginal communities and towns in Australia, home to about 80 000 Aboriginal and Torres Strait peoples. Many are not as well-stocked or frequented as Borroloola.

Figure 3:Australian Bureau of Statistics 2007, ‘Discrete Indigenous Communities and the Australian Standard Geographical Classification Remoteness Structure‘, Community Housing and Infrastructure Needs Survey 2006, map.

Australia - pic 1

For those that have one, the community store is often the main source of food. Fresh and nutritious food is hard to come by in these stores and prices are often inflated. Poor nutrition is central to many of the problems experienced in remote indigenous communities in terms of health, education and personal development. Where people used to rely on “bush tucker” (native fruits, vegetables, herbs, legumes, seeds and animals), they now may opt for the sauce-dunked chiko roll or a gristly Villi’s pie. Shockingly, in this developed country more than one in five (22%) of Aboriginal and Torres Strait Islander peoples are living in a household where someone went without food when the household ran out, compared to less than 3.7% of the non-indigenous population.

What has this got to do with the human right to adequate food and nutrition?

Everyone has the fundamental right to be free from hunger. The right to adequate food and nutrition is realized “when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement.” The right to food can be broken down to four elements of (1) adequacy, (2) availability, (3) accessibility and (4) sustainability. Both adequacy and availability incorporate a requirement of cultural acceptability. According to the Committee on Economic, Social and Cultural Rights, food must be “acceptable within a given culture” which means taking into account “perceived non nutrient-based values attached to food and food consumption … regarding the nature of accessible food supplies.” In terms of access, there are three recognised channels by which an individual can secure food: (1) by earning an income (livelihood), (2) social transfer and (3) production/sourcing of own food. Customary rights to land, hunting and harvesting can facilitate access to food through the first channel if sale or bartering of natural resources is permitted, through the second channel as community members share their harvest with others, and through the third channel as individuals directly enjoy the fruits of their labour.

Traditional food takes a central role in indigenous cultures and economies, as “[p]ractices regarding harvesting, preserving and preparing food reinforce indigenous culture and identity.” Such practices are vital for full realisation of peoples’ right to food and nutrition in terms of accessibility and fulfilling the cultural elements of both adequacy and availability. Countries must take “appropriate steps” to realise this right. So how do South Africa and Australia measure up?

Do South Africa and Australia protect the right to adequate food and nutrition?

In South Africa, the right of all to have access to sufficient food and the right of children to basic nutrition are constitutionally enshrined. The state is constitutionally mandated to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of the right to have access to sufficient food. South Africa does have a Food and Nutrition Security Policy, but it is severely deficient in terms of rights realisation, and there is not yet any right to adequate food and nutrition legislation. At the African regional level, implicit protections of the right to food are ensured through various interdependent rights, such as the rights to health and education.

In spite of the constitutional and regional protections in South Africa, the right to food remains one of the most under-litigated human rights in the South African Constitution. Returning to Dwesa-Cwebe, however, a new action has recently been launched on behalf of two of the communities (documents for which are not yet publicly available). The applicants are challenging the new regulatory regime of the MPA on a number of administrative and procedural grounds, as well as in terms of their customary rights and their constitutional right to food. While the judicial response remains to be seen, litigation challenging law or policy with negative right to food implications, such as this, is an important step in the right direction.

Australia’s position on human rights is slightly less straightforward. While Australia does have federal and State anti-discrimination legislation, it does not have a constitutional Bill of Rights or a federal human rights Act. The Victorian and ACT Human Rights Acts do recognise a right to culture of Aboriginal and Torres Strait Islander peoples, but are limited in their effect to rights-consistent legislative interpretation or declarations of legislative rights compatibility. Similarly, federal mechanisms are not mandated with proactive realisation of human rights.

The Committee on Economic, Social and Cultural Rights noted “with concern” in 2009 Australia’s “lack of a legal framework for the protection of economic, social and cultural rights at the Federal level”. While speaking in the specific context of climate change, the Committee made some broader observations about native title and the right to food:

The Committee recommends that the State party take all the necessary and adequate measures to ensure the enjoyment of the right to food and of the right to affordable drinking water and sanitation in particular by indigenous peoples, using a human-rights based approach …

Australia is three years overdue for its five yearly report to the Committee, the last having been submitted on 7 January 2008. In that report, the Government touted a ten-year “agenda for action in public health nutrition” called Eat Well Australia and nothing else in relation to adequate food and nutrition. Otherwise, food law and policy is limited to regulation in the interests of safety and packaging.

Australia’s indigenous food policy for rural communities such as Borroloola is centred around a 2009 Council of Australian Governments’ National Strategy for Food Security in Remote Indigenous Communities, which focuses on the issues pertaining to community stores. This policy pursues “the development of national standards for stores and takeaways, a national quality improvement scheme, the transition of community stores registered under state legislation to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 [and] a national healthy eating action plan”. While attention to the stock and pricing of community stores is undeniably essential, such policies lack focus on peoples as agents and the importance of culture in realising the right to food.

How are customary law and native title protected in South Africa and Australia, and are these protections good enough for full realisation of the right to adequate food and nutrition?

Australian indigenous rights and law are recognised through Native Title, which was first acknowledged in the High Court case of Mabo. The Native Title Act 1993 (Cth) provides for the recognition and protection of native title and establishes a regime for determining claims. Native Title recognises Aboriginal and Torres Strait Islander peoples’ ongoing rights over land and waters where they continue to practise traditional laws and customs and have done so since before colonisation. These rights include “hunting, gathering, or fishing, rights and interests.” Incidentally, a recent Federal Court decision concerning Borroloola found that this includes the right to take and use resources for any purpose, including commercial, if the evidence supports it. Native title rights are not exclusive, however, and can be extinguished, either partially or totally, depending on the land use since Britain claimed the land under common law.

South Africa differs from Australia in an important respect. Unlike in Australia, where constitutional recognition of Aboriginal and Torres Strait Islander peoples as the first peoples is yet to occur, the South African Constitution expressly deals with the problem of colonial dispossession of land, providing for restitution of property or equitable redress for such dispossession, but only if the land was lost on the basis of racial discrimination after 1913. The nature and content of a community’s land rights must be determined with reference to indigenous law, and by studying a particular community and its usages. The Constitution further mandates that “[t]he courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” However, while section 25(6) of the Constitution provides for an upgrade of insecure land tenure, it is only to the extent provided by legislation which still has not been enacted. As the Constitutional Court recognised in the seminal aboriginal land title case of Richtersveld, “[w]hile in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law.” In South Africa, all the courts of the land are authorised to take judicial notice of indigenous law.

Despite the various legal protections, neither South Africa nor Australia has got it right. The prevalence of the double burden of malnutrition among customary and indigenous communities in each country shows this. One study has shown that, “[f]ood policies that take due account of indigenous peoples’ human rights, including their right to enjoy their culture, may counteract the growth of chronic disease in these communities.” Rather than focusing solely on community stores for improving indigenous health outcomes, what more could the Australian Government be doing to encourage the healthy survival of Aboriginal and Torres Strait Islander customs and connection to land? Australia should encourage further research to understand the traditional law-food-culture nexus, and fundamentally re-think how to improve the nutrition and health of remote indigenous communities, following the leadership of Aboriginal and Torres Strait Islander peoples themselves. South Africa must respect the rights of customary communities such as those in Dwesa-Cwebe and not enact regulatory regimes that prohibit their realisation.

Both South Africa and Australia need to do more in terms of recognising and empowering indigenous and customary communities to live in terms of their traditional laws and customs. The problems outlined are a direct result of colonial legal imposition and government policies that caused cultural decimation. Both countries must recognise the interdependence of human rights, such as customary law and food, and rethink their approaches to rural food and nutrition policy in terms of this bigger picture. The best solutions are to be found in indigenous knowledge and customary practice. We cannot let this knowledge slip away.


Anna Bulman (B.A., Dip. Lang., LLB, GDLP, LLM) is a graduate of both Adelaide University and Columbia University in the City of New York. She is currently working as a David W. Leebron Human Rights Fellow at the Legal Resources Centre in South Africa, on a project centred on the human right to adequate food and nutrition.