Biodiversity Act: Access and Benefit sharing

By: B Meenakumari
The complexity in evaluating biodiversity makes it difficult to ensure equity where bio-resources are concerned. Convention of Biological Diversity and India’s Biodiversity Act are moves to bring in equity in the sharing of bio-resources for mutual benefit.
Ecology Magazine Articles

Conservation and sustainable use of biodiversity are age old traditions in India, as reflected in our ancient scriptures. There are numerous instances of  use of indigenous plants in religious rituals, ceremonial offerings and local healthcare practices.
Historically, biodiversity was taken as an important ‘public good’ to be shared by all. However, biogenetic resources are of tremendous importance for a host of value-added products such as cosmetics, pharmaceuticals and nutritional supplements. In fact, the combined world market for products manufactured through bioresources is estimated to be over 500 billion USD (Laird and Kate, 2002). Given market imperfections, the user always derives far greater financial benefit as compared to the owner of the resource, hence overturning the principle of equity.

The 1992 Convention on Biological Diversity
In recent years, biodiversity losses have become a major cause of concern, especially with several species endangered or on a decline. Where biodiversity is concerned, a species lost is lost forever. In view of this problem, the Convention on Biological Diversity (CBD) was initiated at the Rio Earth Summit in 1992 and came into force in December 1993 as an international instrument for comprehensively addressing biological diversity.
The three objectives of CBD include: the conservation of biological diversity; the sustainable use of its components; and, the fair and equitable sharing of benefits arising from the utilisation of genetic resources (Convention on Biological Diversity, United Nations, 1992). CBD was the first commitment of humankind towards conservation of biological diversity, sustainable use of its components and promoting fair and equitable sharing of benefits arising from their utilisation. It marked the end of the ‘common heritage’ concept of genetic resources by recognising the sovereign rights of states over their natural resources. This Treaty is nearly universal with 196 contracting parties, the United States being the only major country that has not yet ratified it.
Implementing CBD gained momentum soon after its entry into force as several nations, such as the Philippines and the Andean Community, passed laws to claim sovereign rights over their bioresources. India, too, enacted the Biological Diversity Act, 2002 (BDA), with the Union Ministry of Environment, Forests & Climate Change as the nodal ministry for its implementation. India’s BDA provides an umbrella legal framework to affirm the nation’s commitment to this purpose.

Meeting national obligations under international agreements
India is a mega-diverse country, with ten distinct eco-geographic zones. Equally significantly, it has generously shared its biological resources with the national gene banks of the US, Russia and Japan, among others, as also the international gene banks developed by the International Agricultural Research Centres under the Consortium—CGIAR.
India was among the nations who joined and adhered to the voluntary International Undertaking on Plant Genetic Resources (PGR) established in 1983, facilitated by the Food and Agriculture Organisation (FAO) Commission on PGR, which upheld the principle of PGRs being the common heritage of all mankind. The aggressive seeking of intellectual property rights (IPR) on products developed out of genetic resources by developed countries, depriving providers of the benefits of those bioresources in developing countries, saw the CBD being adopted. CBD seeks to balance the rights of providers of genetic resources and their users (including the breeders and other researchers). More recently, the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing (ABS), adopted in 2010, has further consolidated this global legal framework.

Trade related intellectual property Rights (TRIPS), 1995
The TRIPS Agreement under the World Trade Organisation (WTO), which entered into force on January 1, 1995, is the most comprehensive multilateral agreement to date on IPRs. This Treaty requires member states to make patents available for any invention, whether product or process, in all fields of technology without discrimination. Members may exclude plants and animals (other than micro-organisms) and essential biological processes for the production of plants or animals (other than non-biological and microbiological processes). However, any country excluding plant varieties from patent protection must provide for an effective sui generis system of their protection. India has amended its Patents Act, 1970 to permit patenting of products (and also of micro-organisms) and enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001 to meet its national obligations. The Union Ministry of Commerce & Industry is the nodal ministry for implementing this Treaty.

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)
Recognising the interdependence of countries for crop genetic resources, the FAO revised the text of its 1983 international undertaking on PGR to bring its provisions in harmony with those of CBD and then adopted it on 3 November, 2001 as the legally binding international treaty. This Treaty presently covers designated accessions of 64 Annex-1 food and forage crops that are in the public domain while upholding the farmers’ rights, subject to national legislation.
Unlike the bilateral system of agreements under CBD for accessing PGRs, this Treaty provides for a multilateral system of ABS to facilitate exchange of PGRs, initially covering only 35 food crops and 29 genera of forages. Union Ministry of Agriculture & Farmers Welfare is the nodal Ministry for implementing the ITPGRFA.

The Nagoya Protocol, 2010
The Nagoya Protocol to CBD on ABS is the new international treaty that establishes clear rules for accessing, trading, sharing and monitoring the utilisation of genetic resources for research, breeding, pharmaceutical, industrial and other purposes. By establishing a legal framework, it seeks to ensure that genetic resources are not used without prior consent of the countries that provide them.
This Protocol requires that provider parties need to create legal certainty, clarity and transparency for access to genetic resources; provide fair and non-arbitrary rules and procedures for such access; establish clear rules and procedures for prior informed consent and mutually agreed terms; and provide for issuance of an internationally accepted certificate when access is granted. The user countries are also required to ensure that their researchers and other users of genetic resources must comply with the national legislation of provider countries. In India, the National Biodiversity Authority (NBA) has been designated as the national competent authority for implementing this protocol, with a core group of experts constituted to designate check-points and notify measures.

National legislation in India
India enacted the BDA, to provide further support to other complementary national laws in force, such as the Wildlife (Protection) Act, 1972 (as amended in 1991), and the Protection of Plant Varieties & Farmers’ Rights (PPVFR) Act, 2001.
This Act has adopted a differentiating Sections [3 and 19] under which the following categories of persons/ body corporate/ associations/ organisations are required to obtain prior NBA approval for seeking access to India’s bioresources for research and commercial use.
All users are also required to seek prior approval of NBA for transferring research results to users of the above defined category, for applying for IPR over products of research on bioresources and also for third party transfer of the already accessed bioresource.
Access of Indian citizens to bioresources for research is not restricted. However, Section 7 states that no person, who is a citizen of India or a body corporate, association or organisation which is registered in India, shall obtain any biological resource for commercial utilisation, or biosurvey and bioutilisation for commercial use except after giving prior intimation to the concerned state biodiversity board (SBB) with the expectation that a biosurvey (BS) agreement may have to be signed.

Implementing mechanism BDA
A 3-tier system for implementing the BDA has been established comprising the NBA at the national level, SBB at the state level (constituted by state governments) and biodiversity management committees (BMC) at the local level (constituted by local bodies). The BDA mandates implementation through a decentralised approach with the NBA focusing on advising the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilisation of biological resources; and advising the state governments in the selection of areas of biodiversity importance (Nelliyat and Pisupati, 2013).
Funds and grants accruing to these three partners in implementing the Act are operated under the national, state and local biodiversity funds. NBA has also constituted several expert committees and core expert groups (CEGs) from time to time to provide recommendations on specific issues. Eight such ECs and CEGs are presently functional and comprise a pool of 174 experts drawn from different specialisations across the country.

Restrictions imposed on access
Certain restrictions have been imposed under Rule 16 of NBA, and also SBB’s, approvals for access to bioresources, when this requires access to any endangered taxa or endemic and rare species or which may result in an adverse effect on the livelihoods of locals or any adverse environmental impact. Exemptions under the BDA have been provided to promote bona fide use of bioresources for research and non-commercial use. One of the exemption provisions outline accessing bioresources for conventional breeding or traditional practice in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry, bee keeping, etc. in India. However, ‘end uses’ of biological resources for ‘commercial utilisation’ (such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic interventions) are not exempted. Also, ‘value added products’, which may contain portions or extracts of plants and animals in unrecognisable and physically inseparable form are exempted for trade. Moreover, provisions of prior intimation to SBB for commercial use shall not apply to local people and communities including village healers/vaids, farmers and other traditional growers.

Notification on guidelines
The notification on ABS guidelines under the BDA was issued on November 21 , 2014, and provides for simplified procedure for Indian researchers/ government-run institutes to carry out basic research outside India, along with options for benefit sharing for different users, and a graded benefit sharing system, besides up front payment on high economic valued bioresources (such as red sanders and sandalwood).

Way forward
It took consultations over several years for the drafting committee, chaired by Dr M S Swaminathan, to enact the BDA. The provision for differentiating between the Indian citizens/entities and foreigners for access was included in view of strong apprehensions of biopiracy of India’s bioresources and associated traditional knowledge.
Some differing views notwithstanding, it is indeed a tribute to the drafting committee (and others who contributed to this process) that the text of this Act has stood the test of time. Down the years, the reservations of the government departments regarding the interpretation and implementation of the provisions of the Act have been overcome through sustained dialogue. Similar consultations are currently in progress with the seed and pharmaceuticals industries.
With a view to developing better understanding of the Act with the users of bioresources, NBA has embarked on conducting awareness and sensitisation workshops across several states.

Endnote
Incorporating biodiversity concerns within the natural capital framework and mainstreaming biodiversity continues to be a challenge for policy makers, planners, companies, users and investors. It needs to be appreciated, however, that ‘biodiversity conservation with sustainable use’ and ‘inclusive sustainable development’ are increasingly being recognised as mutually supportive.

References

Laird SA. and Kate K. T. 2002. Biodiversity prospecting: the commercial use of genetic resources and best practices in benefit sharingin Laird S. A. (ed.) Biodiversity and Traditional Knowledge Equitable Partnerships in Practice. Earth Scan publication limited. London 2002, pp. 241- 286.

Nagoya Protocol on Access and Benefit Sharing, Available at:https://www.cbd.int/abs/

Prakash N. and P. Balakrishna. 2013. Economic Valuation of Bio-Resources for Access and Benefit-Sharing. National Biodiversity Authority/UNEP/ GEF, Chennai 2013.

United Nations. 1992. Convention on Biological Diversity. Available at: https://www.cbd.int/doc/legal/cbd-en.pdf.

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