A Bill and its flaws

The Biological Diversity Bill, 2001, pending before Parliament, is inadequate to serve the interests of indigenous and local communities, the traditional custodians of biological resources.

N.S. GOPALAKRISHNAN LAWRENCE SURENDRA

THE growing awareness about India's biological diversity and the threats it faces has meant increasing interventions in the name of protecting it. Such activities involve a wide range of actors, from state-sponsored entities to non-governmental organisations (NGOs). The intervention is often effected in the name of the communities that are supposed to be involved in the protection of the biodiversity around them. A major legislative intervention in this context is the Biological Diversity Bill, 2001, which is before Parliament. The problem, however, is that most of these interventions, including the Bill, are characterised by very little sensitivity to the institutional dimensions of the country's federal democracy. A basic requirement in a democratic set-up like India's is to have important issues debated at all levels, from the panchayats to the State Assemblies; and this must be especially so in the case of biodiversity, which is intimately connected to the lives of local communities.

There are several dimensions to the issue of protection of biodiversity, especially in relation to plant and agricultural biodiversity. Legislators, senior forest officials and local community leaders have expressed serious concern, particularly with regard to what they see as an attempt to centralise decision-making, which would be detrimental to local communities. A critical dimension in the context of intellectual property regimes and conservation and protection of biological resources, especially plant genetic resources, is the local community and the traditional knowledge about the resources. Even though India's rich traditional knowledge has been exploited for commercial gains since the period of British rule, there has so far been no legislative attempt to protect it. The notion that traditional knowledge is common property and that no norms - national or international - are required to govern it seems to be the reason for this "sorry state of affairs".

It was the Convention on Biological Diversity (CBD) that for the first time introduced an international norm recognising the need to protect and promote traditional knowledge associated with the biological resources. The statement in the preamble, the objectives, the provision on benefit sharing, the recognition of sovereign right over genetic resources and so on, in the CBD provide ample scope for the Contracting Parties to structure legislative provisions to safeguard the interests of the custodians of bio-diversity. These provisions are the outcome of the realisation that biological resources and the traditional knowledge associated with them are intrinsically interconnected and inseparable while dealing with the various aspects of conservation and sustainable use of genetic resources. This has presented many new challenges before countries rich in biological resources. The most important of them relates to the recognition of the ownership of genetic materials and the traditional knowledge associated with them. The CBD recognised the sovereign right of nation-states over their biological materials and left it to them to devise a method to safeguard and implement this right. This approach is followed in the matter of protection of the traditional knowledge of the local and indigenous communities as well.

According to Article 8(j) of the CBD, a Contracting Party has three obligations: 1) to preserve the knowledge, innovations and practices of the communities relevant to the conservation and sustainable use of biological diversity; 2) to promote the wider application of this knowledge with the approval and involvement of the holders of the knowledge, innovation and practice; and 3) to encourage the equitable sharing of the benefits arising from such utilisation. These obligations are closely related to the obligation to provide access to genetic materials. Needless to say, genetic materials are important because of the knowledge associated with them. Only genetic materials that have known uses and value are in demand for research and use. Since there is an inseparable relationship between a genetic material and the knowledge associated with it, it is imperative that the approval and involvement of the holders of such knowledge are necessary to provide permission to access the material.

The Biological Diversity Bill, 2001, as approved by the Parliamentary Standing Committee, is the legislative framework in India intended to facilitate access to genetic materials while protecting the traditional knowledge associated with them. The Bill has no express provision regarding the vesting of ownership of biological resources and the traditional knowledge associated with them. The Bill restricts the obligation to take prior informed consent and share the benefits of genetic resources and the knowledge associated with them only in the case of their use by non-citizens. The exclusive jurisdiction to decide access in such cases rests with the National Biodiversity Authority (NBA). The NBA is a body to be nominated by the Central government and it would consist of 16 members. The majority of the members would be Central government officials drawn from various departments. A few specialists and scientific experts in the field of biological diversity would also be included. The Bill expressly states that the NBA must be located in Delhi. The government retains the power to remove the chairman and members of the body. The NBA would be neither an autonomous and independent body, nor a democratic institution. In fact it would be under the indirect control of the Central government. No provision has been made for the adequate representation of indigenous and local communities who are the real custodians of the biological resources and attendant knowledge.

The Bill expressly prohibits the obtaining of any biological resources occurring in India and associated knowledge for research, commercial utilisation, or bio-survey and bio-utilisation without prior approval of the NBA by non-citizens, citizens staying abroad and foreign corporations. It also prohibits further transfer of biological resources or the knowledge associated with them by the person who obtained the permission for use to any other person without the approval of the NBA. Interestingly, the parliamentary committee has excluded "value-added products" from this obligation. The committee defines value-added products as "products, which may contain portions/extracts of plants and animals in unrecognisable and physically inseparable form". This was included at the instance of the All India Ayurvedic Congress Manufacturers' Association. This would enable not only Indian industries but also foreign corporations to manufacture and sell many plant-based products, particularly the Ayurvedic products, both existing and modified, without the permission of the NBA. This would also exempt them from sharing the benefits of such use with the custodians of the knowledge associated with such plants and animals. This, it appears, will defeat the very purpose of the law.

The Committee also added a definition for commercial utilisation. The "traditional practices in use in any agriculture, horticulture, poultry, dairy farming or animal husbandry and bee keeping" are excluded. As per Section 3 of the Bill, prior permission from the NBA is mandatory for foreigners for commercial utilisation of biological resources. Exclusion of traditional practices from the ambit of commercial utilisation would enable foreign industries to take away India's biological resources without prior informed consent and the obligation to share benefits. Monitoring how they use it may not be feasible. It will also aid Indian industry in using biological resources for traditional commercial activities without informing the State Biodiversity Board (SBB) as per Section 7. Excluding the existing commercial activities of both Indian and foreign industries from the scope of the Act will have a serious impact on resource generation for the conservation of India's depleting biological resources. The custodians of the knowledge base associated with them will not gain any return from the commercial utilisation of their knowledge.

THE Bill seeks to prohibit the transfer of the results of research based on biological resources, by any person - Indian or foreign - without prior approval from the NBA to persons who are prohibited from such access without approval. Prior approvals for access to or the transfer of the results of research are not needed in the case of collaborative research approved by the Central government. The NBA would be authorised to give approvals to an applicant in the prescribed form after making necessary inquiry and on the basis of terms and conditions that are deemed fit - such as royalty.

The Bill makes it mandatory for the NBA to ensure that the terms and conditions imposed by it secure equitable sharing of benefits in accordance with mutually agreed terms and conditions between the person applying for such approval, the local bodies concerned, and the benefit claimers. This seems ambiguous and conflicting, as it presupposes that the applicant must negotiate with the local body from whose locality the biological resources are obtained and with the benefit claimers whose knowledge associated with the resources is taken and then enter into an agreement for benefit-sharing. The term 'benefit claimer' refers to "the conservers of biological resources, their byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application".

In the majority of cases, benefit-claimers are the indigenous and local communities as understood in the CBD and not individual members of the community. There may be isolated instances where individuals or families hold knowledge. Invariably in such cases the knowledge is held secret and the persons concerned may not be willing to part with the same. But no mechanism is envisaged in the Bill to identify benefit-claimers in cases where they are not individuals but communities. This, it appears, is to enable the applicant to enter into an agreement with an individual member of the community who will be the benefit claimer and to avoid the involvement of the community in the process. It is also not clear whether the NBA would be bound by the terms and conditions of the agreement with the local bodies and the benefit claimers. The use of the word "shall" gives the impression that the NBA is bound by the agreement. But Sections 19(3) and 20(3) give the NBA the freedom to decide the terms and conditions. Making prior informed consent of benefit claimers mandatory is a recognition of their stake in the resources and the knowledge associated with them. But at the same time, the Bill seeks to make the NBA the final authority in the grant of access to resources and the knowledge associated with them. It expressly states that the benefit-sharing, imposed by the NBA may include joint ownership of intellectual property, transfer of technology, location of Research and Development (R&D) and production units in areas that will facilitate better living standards of the benefit claimers, association of Indian scientists and the local people in R&D, bio-survey and bio-utilisation, setting up of venture capital to aid the cause of benefit claimers, payment of compensation, and so on.

The NBA has the discretion to decide the terms and conditions to be included on the basis of circumstances. In cases where the resources or knowledge is provided by an individual, group of individuals or organisation and any money is ordered by way of benefit sharing, the NBA may order that the amount be paid directly to them based on the terms of the agreement. In all other cases, the money will go to the National Biodiversity Fund. This makes it clear that the terms and conditions in the agreement with the local body and the benefit claimers will not be taken seriously and that the NBA will be dictating the terms and conditions. This betrays the reluctance of Parliament to recognise expressly the community as the custodian of biological resources and the knowledge associated with them and its freedom to preserve the same.

The provisions of the Bill tend to violate the doctrine of separation of powers listed in the Seventh Schedule of the Constitution. For example, some provisions have direct implications for agriculture, a State subject. When the Centre legislates on a subject such as this to give shape to an international agreement like the CBD, it should recognise the need to discuss the legislation in the State Assemblies. This is all the more important when the active involvement of States is necessary for the successful implementation of a piece of legislation like this.

It is also mandatory for the NBA to consult the Biodiversity Management Committees (BMC) before taking decisions relating to the use of biological resources. But the NBA is under no obligation to follow the suggestion or the decisions of the BMC. It is worth noting that the NBA would consult the local bodies and not the BMC in the matter of benefit sharing. The BMCs are created by the local bodies, or panchayats, for the purpose of promoting the conservation, sustainable use, and documentation of biological diversity. This includes the preservation of habitats; the conservation of land races, folk varieties and cultivars, domesticated stocks and breeds of animals, and micro-organisms; and the documentation of the knowledge relating to the use of biological diversity.

The Bill, however, is silent on the constitution of the BMC. Apparently, the local body will decide its members. There is a possibility that members of the indigenous and local communities will be included in the committee, though the Bill does not make their representation mandatory. Thus, while the BMC has the responsibility to conserve biological resources and knowledge, the NBA, located in Delhi, has the exclusive power to deal with it even against the wishes of the BMC. While the indigenous and local communities, which are the traditional custodians of biological resources, have the obligation to conserve the resources and knowledge, the NBA can, without their concurrence, enter into any commercial or other agreement with any foreign agency. This in fact is taking away the ownership and control of the biological resources and knowledge traditionally held by them, without their active involvement.

Even though a provision is included to give respectability to the agreements entered with benefit claimers, there is no clear legislative assertion that this is mandatory and that the terms and conditions of such agreements are binding on the parties and the NBA. Parliament would thus divest local communities of their traditional rights over biological resources and the knowledge associated with them instead of giving legal recognition to them. This is against the spirit of the Constitution and the CBD.

The Bill seeks to treat biological resources and the knowledge associated with them as commodities and facilitate their commercial exploitation by foreign agencies. This is clear from the constitution of the NBA. Creation of biodiversity registers at the local level, preferably in the digital media, will enable foreign corporations to locate the availability of commercially useful biological resources and associated knowledge, and acquire them through the NBA located in Delhi without involving the indigenous and local communities. The assumption in the Bill seems to be that the NBA alone is competent to understand and assess the importance of the biological resources and their commercial potential. The NBA is also assumed to have the expertise to safeguard the interests of the indigenous and local communities scattered across the country, an assumption that has been proved wrong on many previous occasions. The Bill assumes that indigenous and local communities are incapable of managing and protecting their own biological resources and the knowledge associated with them.

Unlike foreign nationals, the citizens and corporations of India are permitted by the Bill to use the country's biological resources and knowledge for all purposes, without obtaining permission from anyone. They are bound only to give prior intimation to the SBB concerned for obtaining any biological resource for commercial utilisation, bio-survey or bio-utilisation. There is an exemption from this obligation in the case of people and communities of the particular area and also vaids and hakims who practise indigenous medicine.

THE new definition of biological resources and commercial utilisation will exempt in many cases Indian industries and citizens also from this obligation. Also, they will not be bound by any statutory obligation to share the benefits derived from such commercial utilisation with the indigenous and local communities. It is for the SBB to decide in consultation with the local bodies whether to impose any restriction on such use on the grounds that such use would be detrimental to the objectives of conservation and sustainable use of biodiversity and equitable sharing of benefits arising out of such activity.

The SBB is to be created by the State government for the purpose of implementing the Bill. It would consist of a chairman, five ex-officio members representing the State departments, and five other experts. As a government-nominated body, the SBB will not be adequately represented by the indigenous and local communities.

It is clear that the biological resources and knowledge of the indigenous and local communities would continue to be exploited by Indian corporations without their prior informed consent and without any sharing of benefits. It is difficult to appreciate the logic behind this exclusion. The justification given for mandating foreign nationals to share the benefits with the benefit claimers is the recognition of the latter as the custodians of such resources and knowledge preserved and conserved by them. In this context it is hard to appreciate the exemption granted to Indian industries.

If one is really concerned about the protection of the traditional knowledge of indigenous and local communities associated with biological resources, the Bill should be restructured. The approach must be to treat biological resources and the knowledge associated with them as inseparable. This would mandate that the ownership of biological resources and associated traditional knowledge with the indigenous and local communities be recognised. This approach was followed in the Philippines while enacting legislation to protect the rights of indigenous communities. The law must facilitate the creation of democratic institutions at the local level in the form of trusts, collectives or cooperatives and with the full and effective participation of the custodians of biological resources to own and manage such resources. Representatives of the government as well as experts in the field can advise and help them enter into appropriate agreements. Representative bodies at the district, State and national levels can handle disputes presented by local institutions and also safeguard the State or national interest. These bodies can be empowered to enter into agreements in cases where it is difficult to identify the community that owns the biological resources. They must have a statutory obligation to maintain, preserve and promote the biological resources and the knowledge associated with them. A legislative framework that confers on the indigenous and local communities the power to manage biological resources alone can ensure the protection of the traditional knowledge of these communities and facilitate the conservation and sustainable use of biodiversity.

Dr. N.S. Gopalakrishnan is Reader, School of Legal Studies, Cochin University of Science and Technology, Kochi, Kerala.

Lawrence Surendra is an environmental economist, who has been involved with research and writing on plant biodiversity issues in Asia.