submits that the Ogieks' traditional burial practices of putting the dead in the forest
have evolved such that now they do bury their dead.
158.
Further, the Applicant asserts that the sacred places in the Mau Forest ,
caves , hills , specific trees areas within the forest 40 were either destroyed
during the ev ictions which took place during the 1980s , or knowledge
about them has not been passed on by the e lders to younger members
of th e ir co mmunity , as they can no longer access them. The App li can t
avers that it is only through unfettered access to the Mau Forest that the
Ogieks wi ll be ab le to protect , maintain , and use their sacred sites in
accordance with their religious beliefs .
The Applicant adds that the
Respondent has failed to demarcate and protect t he religious sites of
the Ogieks .
159.
The Applicant also maintains that though some of the Og ieks have
adopted Christianity, this does not extinguish the religious rites they practise
in the forest. The Appl icant adds that , under the Forest Act , the Ogieks
are required to apply annually and pay for forest licences in order to
access their religious sites situated on their ancestral lands , contrary to
the provisions of the Charter.
160.
During the public hearing, Dr. Liz Alden Wily, the expert witness called by the
Applicant asserted that the livelihoods of hunter-gatherer communities are dependent
on a social ecology whereby their spiritual life and whole existence depends on the
forest and that there is a big misunderstanding about the hunter-gatherer cu lture. She
emphasised that for such communities, cultu re and religion are intertwined and
thereforecannotbeseparated. According to he r , it is u sua lly pe rc e iv ed
that
their
c ultur e
can
be
easi ly
dissolved
or
disbanded
in
situations w h ere the hunter -gatherers have been assimi lat ed by
modernism. She stated that many forest dwellers like the Ogieks
do the hunting and gathering , not just for t he ir livelihood, but
40
See Applicant's Reply to the Respondent's Submissions on Merits pages 22 to 23.
47
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