- India is a signatory to the Convention on Biological Diversity and the Nagoya Protocol, which are concerned with the trade in bioresources and the use of traditional knowledge.
- Several national legislations and guidelines are in place, but challenges revolving Access and Benefit Sharing range from tracing users of bio-resources to lack of legal mechanisms for benefit payments.
- ABS could be overshadowing several other equally crucial aspects of India’s Biological Diversity Act such as conservation and Environment Impact Assessments
India became a signatory to the Convention on Biological Diversity (CBD) in 1994. The CBD is a multilateral treaty aimed at conserving biodiversity, its sustainable use and ensuring “fair and equitable sharing” of the benefits obtained through bioresources.
Twenty-six years and several legislations later, India appears to have come a long way. While there are national laws in place to ensure compliance with the CBD and nodal authorities to oversee this, is economic and other benefits reaching the communities that share their biological diversity and associated traditional knowledge?
Policy, legislation lead the way
After India ratified the CBD, there was no looking back. In 2002, India became one of the first countries to enact a law, the Biological Diversity Act, to implement the treaty within its borders. This Act is decentralised for implementation. The National Biodiversity Authority (NBA) at the helm “performs facilitative, regulatory and advisory functions” to conserve genetic resources and ensure fair benefit sharing. State biodiversity boards (SBBs) advise the state government on matters related to biodiversity conservation and sustainable use; and biodiversity management committees (BMCs) implement conservation at the grassroots (panchayats and municipalities) and prepare peoples’ biodiversity registers, or lists of all the biodiversity within their territories, as well as bioresources and associated traditional knowledge.
As of today, there are SBBs in 29 states, and there are 2,44,727 BMCs (and an additional 4,371 BMCs in two Union Territories). The benefit from this network has been that money has began trickling in as early as 2007. For instance, PepsiCo India Holdings Private Limited paid the Tamil Nadu Biodiversity Board Rs 3.7 million to access a species of exotic seaweed Kappaphycus alvarezii being cultivated by local communities in southern Tamil Nadu.
In 2014, India became a signatory to the Nagoya Protocol of the CBD. This international agreement deals explicitly with ensuring Access and Benefit Sharing (ABS): that benefits obtained from the use of genetic resources are shared in a “fair and equitable way” with indigenous and local communities that possess the traditional knowledge regarding its use.
India’s legislation to ratify the Protocol came in the form of the ABS Guidelines notified by the NBA in 2014. These guidelines regulate various aspects of benefit sharing: from the payment an applicant has to provide in return for the commercial use of a genetic resource, how much of that payment (95 percent) should reach local communities, to exemptions for collaborative research agreements.
Falling through the cracks
But despite these treaties and legislations, “access continues while benefits remain illusory,” writes Kanchi Kohli, senior researcher at the Centre for Policy Research, and lawyer Shalini Bhutani in a 2011 briefing paper. For local communities, the ‘chase’ for benefits is still not over; unfortunately, that is the case and will be for a while for at least four reasons, wrote Kohli in an email to Mongabay-India.
“First, regulating benefit sharing is largely dependent on self-disclosure of access by accessors or enforcement action by SBB and NBA. So there are many slips. Second, the fundamental issue of establishing ownership of a resource still remains. Is an agreement with one village enough when several others also access the same resource?” she asks.
There’s no better example to illustrate this issue than the story of the Kani tribe in southern Kerala, and their knowledge of the anti-fatigue properties of the wonder herb arogyapacha (Trichopus zeylanicus) that grows in their forests. Scientists at the Jawaharlal Nehru Tropical Botanic Garden and Research Institute learned about this from their Kani field assistants in 1987, before the CBD and its provisions came into play. Taking a group of Kanis from some villages on board, and instituting a trust in their favour to avail benefits that could accrue from this, the scientists developed jeevani, a drug that captured the plant’s anti-fatigue properties.
However, Kanis from other villages who were not consulted – for the sharing of their knowledge or regarding benefits – disagreed. For several reasons including lack of dialogue between different state departments, long-drawn patenting battles, talks of marketing jeevani have failed and the Kanis’ trust is not active anymore.
This brings up Kohli’s third concern. “Benefit sharing is still very resource-centric with lack of clarity on how benefit sharing on access to people’s knowledge is to be regulated,” she writes. “This is even more difficult than resource-based benefit sharing. Finally, local bodies and BMCs are still not at the centre of determining ABS norms, whether it is regulating access or designing the many different ways that benefit sharing can take place.”
One of the significant failures of the Act is that benefits accrued under the ABS provisions are not reaching the communities who should be receiving 95 percent of it, says Balakrishna Pisupati, chairperson of the Forum for Law, Environment, Development and Governance (FLEDGE) and former chairman of the NBA. One of the reasons cited for this is a lack of guidelines from the NBA on the modalities for sharing benefits, though guidelines for the same were framed in 2013 by a committee chaired by eminent scientist M.S. Swaminathan.
“This inability of the NBA to share benefits is wrong, both procedurally and morally,” he said.
In many cases, the monetary benefits have not reached local communities. For instance, PepsiCo’s payments for access to seaweed in 2007 have not reached beneficiaries yet.
Many challenges in the use of bioresources
Identifying both beneficiaries and accessors is a concern in many cases, said an official from the NBA who did not want to be named. “There are thousands of companies using bio-resources, but very few apply [to the NBA/SBB],” said the source. “Many are not even aware that this is required.”
Ensuring that BMCs are functional is also a big challenge, added Kohli.
“While several have been set up after the National Green Tribunal’s directions, we have a long way to go before they are strong and effective institutions,” she said.
For instance, the CAG report on Andhra Pradesh in September 2018 noted that even after a decade of the formation of the state biodiversity board, “the state had not attained the level of preparedness necessary for the implementation of the Biological Diversity Act.” Out of 13,725 local bodies, only 2,908 had formed BMCs; of these, only 75 had prepared biodiversity registers. In September 2019, the National Green Tribunal came down heavily on 14 states, including Karnataka, for “zero” progress in creating biodiversity registers.
The CBD and the Nagoya Protocol have also come under fire for hampering conservation research. In 2018, scientists backed by 172 co-signatories from 35 countries wrote in the journal Science that obtaining field permits to access specimens for non-commercial research had become increasingly difficult. In fact, “modern technologies, including CRISPR gene editing, are redefining the modalities of access and utilization of biological resources in ways that were not foreseeable during [Nagoya Protocol] negotiations,” wrote the authors.
Recent developments in science and technology have challenged some elements of the Protocol on the ABS, says Pisupati. One such issue is that of the use of Digital Sequence Information (DSI) – where genetic sequence information available in the public domain is enough for the commercial development of products with no need for physical access – he says.
“Today when we speak about coronavirus, the speed with which science is able to work on a cure or vaccination or even diagnostic kits is only because the sequence details of the virus has been made available under the public domain. However, some countries including India are suggesting that DSI be brought under the purview of ABS with specific benefit sharing components agreed on prior to providing such sequence information,” he says.
Similarly, India’s Biological Diversity Act says that local communities should be “consulted”; the Protocol on the other hand, clearly lays out the need for prior informed consent. This is a gap in the implementation of the Nagoya Protocol at the national level, said Pisupati.
“The entire purpose of seeking consent is compromised if one only consults the communities,” said Pisupati.
A new, revised set of ABS regulations – the Guidelines on Access to Biological Resources and Associated Knowledge and Equitable Sharing of Benefits Regulations, 2019 – is in the works and is likely to be notified this year. The draft guidelines, available for public comments in early 2019, stresses that the definition of ‘biological resources’ can also include any associated knowledge if any. It also explicitly lists that SBBs can also apply the new regulations for benefit sharing, based on the powers vested in the state apparatus.
Notably, it appoints the NBA as the “checkpoint” as per the mandate of the Nagoya Protocol. Though the NBA has designated several checkpoints to looks at issues of compliance, the implementation of actions by the checkpoints are unclear with limited monitoring and evaluation happening by the NBA on the role and actions of the checkpoints, he says.
Despite these challenges, many opine that ABS holds an “enormous” scope in India.
“Considering India is a megabiodiverse country, the potential for using our bioresources has been immense and ABS can act as an innovative financing mechanism if India adopts a facilitating approach to implementing the ABS provisions under the Act,” said Pisupati.
This “ABS potential” of the country is what needs to be studied better and understood, said Dr. V.B. Mathur, the new Chairman of the NBA, in an exclusive conversation with Mongabay-India. “The draft guidelines, regulations and Act itself are under review to make the process for ABS application simpler,” he said.
The reviews include reworking the draft to accommodate several timelines for different aspects of the ABS process, and computerising the entire system; moving to a “more transparent” mechanism and an online portal, clarified Mathur. Efforts are underway to develop and implement an electronic Peoples’ Biodiversity Register ePBR framework; this would come in useful for monitoring the resources over time, too, added Mathur. To protect data and prevent it from being accessed in the public domain, metadata will be available; beneficiaries can give their prior informed consent online, and mutually agreed terms can be developed between the beneficiary and accessor through this system too.
“Plans are also on to develop an incentive mechanism for the ABS system, in which an “ABS-compliant” certificate will be provided to applicants,” said Mathur.
Though these monetary mechanisms of the ABS system shows a country’s compliance with the regime, researchers have also warned about considering benefits as being purely monetary. “Monetary ABS reduces biodiversity or knowledge to a mere legal contract, where there is a raw material provider and a developer,” said Kohli. “All the other ecological, cultural and social meanings are lost.”
Interestingly, ABS has become “one of the overwhelming focus areas of the implementation of the Biological Diversity Act in India”, she added. “Several other objectives of the law, including conservation, sustainable use and biodiversity impact assessments, have not been prioritised.”
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