Promoting Biodiversity with a People-Centred Approach

Introduction

In line with LRCs poverty alleviation focus and client mandate our submissions focus on the impact of the bill on the rights and interests of indigenous and local communities. In particular, there is concern that Chapter 6 (bioprospecting, access and benefit sharing) does not adequately protect the biological resources, related knowledge, practices, innovations and uses of indigenous and local communities.

In comparison with the draft bill (draft 9) published for comment to the department, the current version ignores benefits arising from biopropsecting that employs indigenous or local communities uses and knowledge and deals exclusively benefit sharing arising only from bioprospecting of biological resources.

In addition, the bill's language with regard to granting access to such resources and related traditional knowledge will lead to serious breaches of indigenous communities rights as it does not completely include them in the process.

In these regards the bill deviates substantially from the policy framework in the White Paper, NEMA and relevant international instruments.

 

The legal and policy context

Firstly, clause 2(a) states that the objective is to provide for the sharing of benefits "within the framework of the NEMA." Secondly the bill itself (in clause 2(b)) promises to give effect to South Africa's obligations under international law.

Communities value their physical bioresources, and their associated use, practices and knowledge. The bill in its present form fails to protect and denigrates the value of practices and knowledge. South Africa's constitution demands that environmental governance and regulation must "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development." (Section 24(b)(iii)).

This constitutional imperative is reflected in the language of the NEMA, which explicitly requires that "environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably" (section 2(2)) and that "equitable access to environmental resources, benefits and services to meet basic human needs and ensure human wellbeing must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination" (section 2(4)(d)).

NEMA deliberately took a people-centred approach and requires the continued involvement of local people in the management of biodiversity. These values are reflected in the White Paper (Principles 2.4.10 and 2.4.11), which also emphasizes the roles of indigenous people, women and traditional knowledge holders as key players in the process.

The relevant international instruments include the Convention on Biological Convention (CBD), the Bonn Guidelines on Access and Benefit Sharing, and the OAU draft law. Article 8(j) of the Convention states: "Each Contracting Party shall, as far as possible and as appropriate: Subject to its national legislation, respect, preserve and maintain the knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval of the holders of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices". The Bonn Guidelines which were adopted to interpret provisions of the Convention apply to "all genetic resources and associated traditional knowledge, innovations and practices" [9 - scope] and oblige state parties, in their capacity as providers, to "only provide genetic resources and/or traditional knowledge when they are entitled to do so" [16(c)(i) - obligations]. The CBD protects and promotes traditional knowledge associated with genetic resources, this link is strengthened in the Guidelines.

 

Biodiversity law and intellectual property law

The argument articulated by the Department of Environmental Affairs that current intellectual property law should regulate the benefit sharing of valuable bioresource knowledge and practice, does not hold water.

The Bonn Guidelines suggest a mutually supportive relationship between the CBD and IPR agreements, including: the possibility of mandating joint ownership over IPR; the specification on the types of uses (including commercial and other uses); and the encouragement of the disclosure and certification of the origin of the genetic material and traditional knowledge in patent applications.

Mechanisms that disclose or certify the origin of genetic material or traditional knowledge in intellectual property rights application procedures as proposed in the Guidelines will enhance mutual support between intellectual property systems and the access and benefit sharing regimes. Encouraging cooperation between the TRIPS and CBD regimes will generate a less complex and burdensome access regime, and increase confidence among private enterprise, biodiversity rich countries and indigenous communities.

The Bonn Guidelines are the only internationally agreed upon tool for access and benefit sharing of genetic resources and related knowledge. The content of the Guidelines supports concerns raised by developing countries including India, Brazil and the Africa Group in the TRIPS Council under the review of Article 27.3(b) of the TRIPS Agreement.

Issues like the specification of uses, consent by indigenous communities to use their traditional knowledge and disclosure of origin confirm existing practices and regulations incorporated by parties of the CBD in their own national legislation. Countries at the World Summit on Sustainable Development in September 2002 approved a new Plan of Implementation, which contains a set of actions for achieving sustainable development objectives. In particular, paragraph 42(n) promotes implementation and continued work with the Bonn Guidelines. The WSSD has thus given additional political support to the views of developing countries. South Africa cannot afford to continue to ignore the Bonn Guidelines, and risk the unregulated exploitation of the bioresource knowledge and practices of its citizens.

Comment on Chapter 1 Definitions

The LRC has further concern that the lack of certain definitions in the Bill may lead to uncertainty in interpretation and consequently compromise the rights of indigenous and local communities.

As it stands, the Bill gives no legal protection to local and indigenous people and communities who can grant access to a bioresource, associated knowledge, use or practice. Consequently, there is no reason for local and indigenous communities to contract with bioprospectors. Defining a "right-holder" in the Bill will lend clarity to the rights at stake. It will validate the holder as a legal entity with capacity to transact benefit sharing agreements. The language could read:

"A right-holder is any person or community that has or has had knowledge and practices, and as determined as such by regulation."

A holder of an indigenous right may found its claim on a number of sources:

  1. ownership of the physical indigenous biological resources in terms of the common law, indigenous customary law or customary international law;
  2. ownership of the rights relating to a use, practice or knowledge in terms of the common law, indigenous customary law or customary international law;
  3. ownership in terms of intellectual property statute law;
  4. the right to negotiate (and informed prior consent) in terms of this bill and the CBD.

Statute law should recognize all the sources of the traditional rights involved, and cannot limit ownership rights only to those protected by statute law on intellectual property.

The White Paper contains the following useful definitions that should also be considered for inclusion in the bill:

Prior Informed Consent: Prior informed consent is consent to an activity that can be given only after receiving full disclosure regarding the reasons for the activity, the specific procedures the activity would entail, the potential risks involved, and the full implications that can reasonably be foreseen.

Traditional Knowledge: Traditional knowledge of biodiversity refers to a body of knowledge built up by a group of people through generations of living in close contact with nature. Traditional knowledge of biodiversity is both cumulative and dynamic, building upon the experience of earlier generations and adapting to the new technological and socio-economic changes of the present.

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

Purpose and application of Chapter

78. (1) The purpose of this Chapter is to-

(a) regulate bioprospecting of genetic material derived from indigenous biological resources; and

Consider reinserting reference to both indigenous and local uses and knowledge, in addition to "biological resources," as was present in a previous version of the Biodiversity Bill. The draft in its current form has neglected to include such language, severely limiting the ability of the Bill not only to protect indigenous communities, but to achieve the objectives stated in the Bill itself, to "give effect to ratified international agreements relating to biodiversity which are binding on the Republic." (Chapter 1(2), Objectives of the Act).

Article 8(j) of the Convention on Biological Diversity (CBD), ratified by South Africa in 1995, requires the protection of "innovation and practices" of indigenous communities. The Organisation of African Unity (OAU) Draft Legislation on Access to Biological Resources and Community Rights, 1999, offers an example, respecting both genetic material and "knowledge, innovations and practices" (OAH Draft, Article 2(a)). Furthermore, the Bonn Guidelines, adopted by the Conference of the States Parties in Decision VI/24, offers some guidance on what legislation passed by States should entail.

We propose rewording the purpose of the bill in this way:

"regulate bioprospecting of genetic material derived from indigenous biological resources, their innovation, knowledge and practice or past practices."

Such language would not only strengthen the proposed bill, but also lend more clarity to those resources at stake. It would also recognize both current and historical practice

.

(b) provide for a fair and equitable sharing of benefits arising from bioprospecting of genetic material derived from indigenous biological resources.

Our submissions with respect to section 78 (1) (a) are applicable here.

We propose:

"provide for a fair and equitable sharing of benefits arising from bioprospecting of innovations, uses or knowledge of indigenous biological resources, with persons or communities practicing or having practiced those traditional uses or knowledge."

This clause would respect not only the bioprospecting of knowledge, but clarify that equitable sharing means sharing with the peoples who initially provided the knowledge. The bill in its current form does not make either of these needs clear.

(2) This Chapter applies to -

(a) bioprospecting of genetic material derived from any indigenous biological resources; and

Include indigenous and local use and knowledge here. The Bonn Guidelines clearly state that the scope of the guidelines, and thus the CBD itself includes "all genetic resources and associated traditional knowledge, innovations and practices" (Bonn Guidelines, Art. 9).

(b) the export from the Republic, for the purpose of research or bioprospecting of any indigenous biological resources listed by the Minister by notice in the Gazette.

(3) In this Chapter -

"indigenous biological resources" -

(a) includes -

(i) any indigenous biological resources defined in section 1, whether gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology;

(ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and

    1. any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii); but

(b) excludes -

(i) genetic material of human origin;

(ii) any exotic animals, plants or other organisms, other than exotic animals, plants or other organisms referred to in paragraph (a) (iii); and

(iii) indigenous biological resources listed in terms of the International Treaty on Plant Genetic Resources for Food and Agriculture; and

"listed indigenous biological resources" means any indigenous biological resources listed in terms of subsection (2)(b).

(4) This Chapter must be interpreted in terms of any applicable law.

Consider adding a definition of "other indigenous resources," as including knowledge, uses and practices.

Bioprospecting involving indigenous biological resources

79. (1) A person may not engage in bioprospecting of genetic material derived from indigenous biological resources without a permit issued in terms of Chapter 7.

(2) A permit referred to in subsection (1) may be issued only if -

(a) a person or community providing or giving access to the relevant indigenous biological resources for the purpose of such bioprospecting, has consented to the terms and conditions of a benefit-sharing agreement that will regulate such provision or access; and

This language may lead to serious misinterpretations because it does not clarify that the "person or community providing or giving access" must be the right-holders of the indigenous biological resources or traditional uses and knowledge. As it stands, the section fails to fulfill South Africa's obligations under the CBD.

The Bonn Guidelines also demand that indigenous communities are themselves involved in the access-granting process. Article 16(a)(vii) states that Parties "Support measures, as appropriate, to enhance indigenous and local communities' capacity to represent their interests fully at negotiations." Further, all relevant stakeholders be consulted and their views taken into account "in each step of the process" (Art. 18, emphasis added). Relevant stakeholders include indigenous and local communities (Art. 19).

The above language could be reformulated as follows:

"the person or community that are holders of the relevant indigenous biological resources or the traditional knowledge, innovations and practices has consented to the terms and conditions of a benefit-sharing agreement that will regulate such provision or access"

(b) the Minister has in terms of section 80(2) approved the proposed benefit-sharing agreement between the parties.

(3) Consent referred to in subsection (2) (a) must be based on full disclosure of all relevant information, including the intended use of those indigenous biological resources.

Consent must be defined as prior informed consent, in addition to requiring full disclosure of all relevant information in compliance with Principle 2.4.6 in the White paper. The language could read:

"Consent referred to in subsection (2)(a) must be prior informed consent and must be based on full disclosure..."

The Bonn Guidelines emphasize that prior informed consent is a necessary pre-condition to obtaining a permit. Article 26(1) states "The consent of relevant stakeholders, such as indigenous and local communities... should also be obtained." This consent is granted with a view to "respecting established legal rights of indigenous and local communities associated with the genetic resources being accessed or where traditional knowledge associated with these genetic resources is being accessed, the prior informed consent of indigenous and local communities and the approval and involvement of the holders of traditional knowledge, innovations and practices should be obtained..." (Art. 31, emphasis added).

In addition, the Bill must clarify that permission to access genetic resources does not necessarily imply permission to use associated knowledge, and vice versa (See Art. 37, Bonn Guidelines).

It is proposed that the legislature consider setting guidelines on prior informed consent. These guidelines should include: a description of the indigenous biological resources or knowledge to be accessed, the intended use of those indigenous biological resources and knowledge, proposed/possible future uses of the same, whether it is intended to export the indigenous resource and to where, applicable/proposed patents and intellectual property rights, possible sharing of said resources and knowledge with third parties, and the proposed terms of benefit sharing with the local indigenous community(ies).

(4) An issuing authority prescribed in terms of section 94-

(a) may engage the person applying for a permit and the other parties on the terms and conditions of the benefit-sharing agreement;

(b) may facilitate negotiations between the applicant and the other parties and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other parties is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other duties functions that may be prescribed.

Benefit-sharing agreements

80. (1) A benefit-sharing agreement must -

(a) be in a prescribed format;

(b) determine -

(i) the type of indigenous biological resources to which the relevant bioprospecting relates;

(ii) the area or source from which the indigenous biological resources is to be collected or obtained;

  1. the quantity of indigenous biological resources that are to be collected or obtained; and

Note that this section may only be applicable where a biological resource is being collected; traditional knowledge and practice cannot be quantified.

(iv) the present potential uses of the indigenous biological resources;

(c) name the parties to the benefit-sharing agreement;

(d) set out the manner in which and the extent to which indigenous biological resources are to be utilised or exploited for purposes of such bioprospecting; and

(e) set out the manner in which and the extent to which a person or community providing those indigenous biological resources may share in any profits, revenues or other benefits that may arise from the commercialisation through bioprospecting of such indigenous biological resources; and

(f) record the particulars of any such benefits.

In addition, the language of subsection (e) should be changed to read:

"set out the manner ion which and the extent to which a person or community providing those indigenous biological resources, knowledge or practices shall share in any profits, revenues or other benefits, including monetary and non-monetary, that may arise from the commercialisation through bioprospecting of such indigenous biological resources;"

(2) A benefit-sharing agreement -

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.

A further clause should be added here that requires the Minister to approve the benefit-sharing agreement only if it is fair and equitable, in line with Principle 2.4.8 of the White Paper.