Taking active steps towards preserving biodiversity in India

Lex Orbis
Manisha Singh Nair
[email protected]

Genetic resources and knowledge were often derived from communities and countries by organisations and individuals who monopolised the benefits. There was little or no exchange of knowledge and no offer of compensation to such communities. However, the presence of a rich plethora of biological resources and inherited knowledge gave rise to the need for legislation to protect the traditional knowledge and benefits accrued from the use of resources. While a few countries afforded legal provisions for access and benefit sharing, the benefits were usually narrowly defined as tangible benefits (in the form of royalties) and benefit sharing was largely carried out at the government level. Benefits did not reach the traditional owners of genetic resources and associated traditional knowledge and local communities and countries of origin were often not informed about the use of their resources and knowledge. This limited their bargaining power and prevented them from sharing in the benefits of their own resources.

In this endeavour, the Convention on Biological Diversity (CBD) came into effect in 1992 to effectuate access to genetic resources and associated traditional knowledge. Growing concern over the monopolisation of benefits led genetic resource(s)-providing countries to restrict access to genetic resources and associated traditional knowledge. This led to the negotiation of an international regime to regulate access and benefit sharing. The CBD integrates the objectives of conservation, sustainable use and benefit sharing. It balances the right of resource-providing countries to share in benefits with the right of technology-rich countries to access biodiversity resources in biodiversity rich countries.

India is one of the 12 mega biodiversity countries of the world and one among 194 signatories to the CBD. By virtue of a wide variety of physical and climatic conditions, India harbours a varied ecosystem and is adorned with 10 biogeography zones and 26 biotic provinces.

India asserted the right to claim benefits from the use of biological and genetic resources and associated traditional knowledge, innovations and practices in the name of indigenous and local communities. The puzzle however was how much of these benefits would actually flow to benefit the communities. Accordingly, the Biodiversity Act 2002 was formulated. The preamble of the Act spells out the objective as:

An Act to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.

The Act largely discusses genetic resources and associated knowledge held by foreign companies and nationals, and the equitable sharing of benefits arising out of the use of these resources. At the national level, India has been taking action to combat bio-piracy – the compilation of the Traditional Knowledge Digital Library (TKDL) and providing access to the same to international patent search and examining bodies is a vital move towards monitoring, and protecting from, the breach of traditional knowledge. Further, the formulation of the Protection, Conservation and Effective Management of Traditional Knowledge relating to Biological Diversity Rule, 2009 reveals an ambitious and equitable agenda. This is to establish an access and benefit sharing regime based on the principles of prior-informed consent of the community holding the traditional knowledge in question.

The statutory authority set up under the 2002 Biological Diversity Act, the National Biodiversity Authority (NBA), is making a move to acquire comments and views on the International Regime on Access and Benefit Sharing – evolving a sui generis system for the protection of traditional knowledge and any amendments to the Biological Diversity Act, 2002 and Biological Diversity Rules, 2004. The invitation for comments and critique is of greater significance since India initiated the organisation of the 11th Conference of Parties signatory to the CBD in 2012. This conference shall deliberate upon the adoption of an International Protocol on Access and Benefit Sharing. The protocol aims to facilitate access to genetic resources, to ensure effective and equitable sharing of benefits arising out of the utilisation of genetic resources, and also to prevent any misuse. But the main aim is to regulate access to biological resources so as to stop theft of resources for commercial exploitation, as well as ensure that the community sharing the resources can gain benefits out of their use.

India undoubtedly recognises the potential and need to protect its biological resources and benefits derived therefrom. The move to invite comments and deliberate upon the NBA's proposal is to initiate participation of stakeholders in protecting national interests.