Green future

Print edition : May 27, 2016

A Kani elder harvesting Arogyapacha from the Kottoor forests in Kerala. An agreement was worked out between the Kanis, the JNTBGRI and a private company to bring this biodiversity product and the associated traditional knowledge into greater public use by developing a commercial drug called Jeevani. Photo: S. Mahinsha

The book explores the possibility of sustainable use of biodiversity and associated traditional knowledge with economic benefit for the communities and countries that have conserved them for generations.

THERE is an irony related to biodiversity and economics. Communities that live in close contact with biodiversity-rich forests are economically poor, whereas people who live in biodiversity-poor urban centres and make commercial use of the biological resources are economically rich. To stretch the theory further, biodiversity-rich tropical countries are usually economically poor, whereas developed industrialised countries, which use biological resources to manufacture industrial products, are rich.

This paradox came into international focus in the early 1990s with the signing of two international agreements. The first was the Convention on Biological Diversity (CBD), designed and announced at the United Nations Conference on Environment and Development held in Rio de Janeiro in Brazil in June 1992; the second was the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which was part of the World Trade Organisation (WTO) Agreement envisaged in Marrakesh, Morocco, in 1994.

The CBD was path-breaking in the sense that it declared biological diversity and the traditional knowledge associated with its use as a sovereign national property. This marked a paradigm shift because until then biological diversity was considered a part of the global commons. The CBD aimed at promoting three objectives: conservation of biodiversity (and the associated traditional knowledge), its sustainable use, and fair and equitable sharing of benefits arising from its use.

The objective of the TRIPS Agreement, on the other hand, was to protect and enforce intellectual property rights (IPRs) in order to promote technological innovations and ensure transfer of technology. The larger goal of the WTO agreement was to promote multilateral trade across countries.

Since biological diversity can be the starting point for much of the research and commercialisation in agriculture, pharmaceuticals, biotechnology and many other sectors, it comes within the interface of the two international agreements. This interface gets routinely played out in India, since it is a global biodiversity major and was the first country to implement a Biodiversity Act and create appropriate intellectual property laws.

The book under review looks at this interface, its past history, and future ways to improve access and benefit-sharing. The author, Shivendu K. Srivastava, a retired senior Indian Forest Service (IFS) officer, says he intended the book to be a “toolkit for the natural resource managers involved in the business of biodiversity”.

The main thrust of Srivastava’s narrative is not on questioning why the communities and nations living in biodiversity-rich areas are poor. That would have called for a socio-economic analysis of the Marxist kind. He limits his scope to understanding the legal systems in operation internationally and in India, highlighting case studies of benefit-sharing projects and showing how access and benefit-sharing can be improved.

It is interesting that an IFS officer is looking at these issues in depth because he brings to the narrative the perspective of a natural resource manager and an understanding of what is practical and possible. Usually, these think-throughs are done by academics or non-governmental organisations (NGOs), which, despite their conceptual clarity and ideological correctness, may not always have practical applicability.

Of the nine chapters in the book, only the last three deal with a plan of action for the future. What would have otherwise been an overkill of historical contextualisation gets moderated because of the complexities of the CBD-TRIPS interface that the book helps to clarify. Of use is a table in chapter 5, which compares the TRIPS and the CBD agreements and the Indian Biodiversity Act.

The first six chapters seek to recall what has happened since the early 1990s when the CBD and the TRIPS agreements came into force. It was an interesting period in Indian environmental history, since Parliament started the process of drafting two pieces of legislation in relation to these international agreements—the Biodiversity Act of 2002 and the Protection of Plant Variety and Farmers Right Act of 2001—and an amendment to the Patents Act, where exemptions from product patents were removed for all industrial produce.

The successive governments at the Centre in the 1990s (a period that saw frequent changes in government) encouraged public discussions on the drafting process. The parliamentary committees tasked with drafting the relevant laws organised public hearings. Thus, many of the issues that Srivastava talks about were discussed threadbare in the public domain.

A trek with Kanis

There were far more questions than answers. The Jawaharlal Nehru Tropical Botanic Garden and Research Institute (JNTBGRI) in Thiruvananthapuram, Kerala, entering into an agreement with the Kani tribal people of the Western Ghats was one of the efforts taken to work out a benefit-sharing model with the conservers of biodiversity and associated traditional knowledge. Scientists of the JNTBGRI discovered the energy-giving qualities of the fruit of a plant called “Arogyapacha” ( Trichopus zeylanicus) during their trek into the forests in 1987 for an ethnobotanical survey with elders of the Kani tribe as guides. Even as the scientists panted as they climbed the steep slopes, the tribal elders showed no signs of fatigue. The reason for this, they found out, was “Arogyapacha” fruits they consumed.

An agreement was worked out between the Kanis, the JNTBGRI and a private company Arya Vaidya Pharmacy Ltd (AVP), to bring this biodiversity product and the associated traditional knowledge into greater public use by developing a commercial drug called Jeevani. The JNTBGRI scientists identified and isolated 12 active compounds from the fruit and filed two patent applications on the drug.

Discussing this case study, the author says: “In order to bargain from the wonder drug, following the guidelines of the Council for Scientific and Industrial Research (to which the institute was affiliated), the JNTBGRI licensed the technology for manufacturing Jeevani to AVP, transferring the right to manufacturing the drug vide an agreement signed in 1996 for a period of seven years. In addition to the licence fee of one million rupees, the JNTBGRI was also to receive royalty of 2 per cent on any future sales of the drug.”

In turn, the JNTBGRI reached an agreement with the Kanis. “These benefits were accruing from the TK [traditional knowledge] held by the Kani people, and, therefore the JNTBGRI decided to share the benefits with the Kani community in general, with substantive share going to the Kani guides who provided the clue that led to the development of the drug,” writes Srivastava. The JNTBGRI decided to share half of the licence fee and future royalties with this group of Kanis. A trust fund, with nine Kanis as trustees, was established in 1997.

The benefit-sharing arrangement, however, went through some chaotic phases. The Forest Department had reservations about declaring Arogyapacha a minor forest produce, for fear of its over-exploitation. There was a lack of unanimity among the Kani people about their understanding of the benefit-sharing and the trust arrangement. Then there were the complexities relating to who owned the resource and the traditional knowledge and whether the plant was growing on private or government land.

Similar issues, confusions and conflicts have emerged from other places in the world, too, where benefit-sharing models were worked out. The book talks about projects in Costa Rica, Suriname, Nigeria, southern Africa and Morocco.

Nevertheless, these projects are the stepping stones for future development of access and benefit-sharing frameworks which not only promoted sustainable use of biodiversity and associated traditional knowledge, but also increased economic benefit for the communities and countries that have conserved them for generations.

Srivastava writes: “There can be no model bio-prospecting arrangement as each project would have a different set of biological resources, each indigenous and local community may have a different cultural tradition and even the local laws may be varying according to its own social goals and priorities. … Even the very initiation of a project may be the catalytic effect from different institutions—sometimes by a government institution, at times by an international environment organisation, or in some cases it may be initiated by a small company, and not necessarily by an indigenous and local community or an active NGO.”

Despite these limitations, efforts have to be made to continuously strengthen benefit-sharing mechanisms. Otherwise, those communities and countries that had conserved biodiversity and associated traditional knowledge for generations may themselves become over-exploiters of the resource for commercial use.

“Here comes the role of the mechanism of benefit sharing, and this mechanism will be more robust if the benefits drawn are enough to sustain a particular habitat of the biodiversity…. Quite naturally, in order to draw adequate benefits that are proportionate to the value of the resource, the source countries have got to have a relook on how to bargain maximum from the resource-user countries,” the author says. This means that national and local laws have to be strengthened and all the stakeholders must be involved in the process.

The earlier models of benefit sharing were worked out at a time when there were no national laws on access and benefit sharing. Now, several countries are in the process of putting these together.

The Nagoya protocol

Also, the Nagoya Protocol on Access and Benefit Sharing, an offshoot of the CBD, came into force in October 2014, mandating countries to enact laws to protect these elements. The protocol aims to facilitate access to genetic resources and share benefits from their commercial use with the communities in an internationally acceptable manner, which has legal certainty and transparency.

Interestingly, India had most of the elements of the Nagoya Protocol as part of its Biodiversity Act of 2002. Thus, it has much of the framework required for commercialising biological diversity and associated traditional knowledge in a sustainable manner.

Srivastava concludes with three recommendations to strengthen benefit sharing. He says that there is a need to develop a cadre of professionals with scientific and legal expertise to facilitate access and benefit sharing. Each of the stages of developing a benefit-sharing project has to be gone through with utmost care, since there is no one-size-fits-all solution. The biodiversity-rich countries should continue to work towards making TRIPS more amenable to benefit sharing through the international negotiations mechanism.

Srivastava’s conclusions and recommendations may not be the last word on the subject as it is constantly evolving. But, his effort to comprehensively include in the book all aspects of access and benefit sharing will certainly enable managers, researchers, activists and representatives of the indigenous community to negotiate better deals in the future.

S. Gopikrishna Warrier is an environment journalist and blogger.

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