Forests BiodiversityAccess and Benefit Sharing

Ramanjaneyulu

Forests, Biodiversity and Human Interface• Forest ecosystems have evolved over centuries and are one of the most complex webs

of biological organisms• Forest diversity encompasses not just trees but a multiplicity of biological organisms

namely plants, animals and microorganisms within them. • Future of the forests depends on the health of these constituent parts and the existence

of the ecosystem as a whole.• Forests continue to be a source of food, fodder, fuel and fibre for them. A vast, varied

and vibrant set of relationships (between the people and the forests) is manifest through cultural expressions, spiritual associations and religious connotations

• While local communities have played a part in forest conservation, several species of forest flora and fauna have also thrived and survived due to the absence of any destructive human interference in their habitat.

• Today, forest biodiversity is increasingly threatened as a result of deforestation, fragmentation and indiscriminate and unsustainable extraction of forest produce for commercial purposes.

• The India State of Forest Report 2011 has shown an overall decline in forest cover in the country. The core problem is of diversion of forest lands for non-forest uses.

• The diversion of primary or natural forests for monoculture plantations also comes at a cost to diversity.

Access and Benefit Sharing• Access is the permission to obtain and use genetic or biological

material or resources (GBMR) and the knowledge of its uses• The international Convention elaborates on the other dimensions

of access as well, these are:– access to genetic resources (GR) and traditional knowledge

(TK) of these resources from the South,– access to technology transfer from the North and– access to benefits derived from the use of genetic material.

• Over the years there has been a growing interest in germplasm and local know-how about it from the scientific community, formal researchers and those with commercial interests

• Tribal and other forest-dwelling communities have always accessed forest-based biological material for medicinal purposes, self consumption, cultural uses, exchange and local trade.

• The scale is now globalised.

Biodiversity regime and its relevance• The domestic biodiversity regime is meant to regulate both access

and benefit sharing (ABS)• Local communities collecting forest produce do not need to intimate

the government body, i.e. the State Biodiversity Board (SBB), to access resources, as domestic companies (whether small firms or large corporations) are required to do before such access. [Section 7]

• Foreign nationals, institutes or companies need to get due permission from the National Biodiversity Authority (NBA) under the ABS regime for access to any Indian GR or TK

• Wild flora and fauna have been accessed by researchers, research institutions and corporations interested in the curative, cosmetic or other related properties of these species for a long time now– critical ecological issues around sustainable extraction, endangering already

threatened species and habitat destruction– questions of consent of tribal and forest dwelling communities and their

involvement in the overall decision-making process.

ABS, Biodiversity Act and Forests• The National Biodiversity Authority (NBA) is the apex government body

under the Ministry of Environment and Forests (MoEF) entrusted with the responsibility to implement the access and benefit sharing (ABS) regime

• Amongst its 15 members, it is required to have two ex officio members from the MoEF, one of whom is either the Additional Director General of Forests (ADGF) or the DGF. It has also set up an Expert Committee on ABS to process access applications on a regular basis.

• The BD Act delineates that it is to be applied in addition to the laws pertaining to forests and wildlife.

• This has led to a somewhat skewed interpretation by some State Biodiversity Boards (SBBs) that the ABS regime will only apply to areas outside the jurisdiction of the Forest Department.

• According to the BD Act, geographically it applies to the whole of India• Its stated objectives of conservation, sustainable use, fair and equitable

benefit sharing, are particularly relevant for the forest ecosystems and the people whose lives and livelihoods depend on them.

Types of applications for access

The NBA receives access applications in prescribed formats along with the required fees:• Form I: Application for access to biological resources and associated

traditional knowledge (Fee Rs. 10,000/-)• Form II: Application for seeking approval for transferring results of

research (Fee Rs. 5,000/-)• Form III: Application for seeking prior approval of NBA for applying

for intellectual property right (Fee Rs. 500/-)• Form IV: Application for third party transfer (Fee Rs. 10,000/-)• Some SBBs in their state-level Biodiversity Rules (such as the Madhya

Pradesh Biodiversity Board) also prescribe the Form I format with a Rs. 100/- fee to be used by domestic companies for giving the required ‘prior intimation’ to the Board when obtaining any biological resource for commercial utilisation, bio-survey or bio-utilisation. [Section 7 read with Section 24 of the BD Act]

What does the law say• It is the legal duty of the central government to devise and execute national strategies,

actions, plans and programmes for conservation, but also to issue directives to state governments to take immediate steps where biodiversity and habitats are threatened by overuse, abuse or neglect. [Section 36]

• The BD Act intends to regulate only commercial utilisation, bio-survey or bio-utilisation as defined in the law itself. Therefore, local people including what the Act calls ‘growers, cultivators and traditional healers’ do not have to give prior intimation to the State Biodiversity Boards for obtaining any biological resource from forests for their everyday activities. But, this provision under the BD Act for access by local peoples cannot override any forest laws. [Section 7]

• Every local body is required to form a Biodiversity Management Committee (BMC ) whether at the urban or rural level. [Section 41] The BMCs have been tasked by the law to make People’s Biodiversity Registers (PBRs) among other things. These registers would be a people’s record of the forest diversity and knowledge linked to it. As per the Act urban forest management plans need to be as mindful of diversity as rural plans.

• It is mandatory for the NBA to impose such terms and conditions on the grant of approval for access that ensure equitable benefit sharing from the use of accessed biological materials or TK associated with them. This has to be mutually agreed upon in consultation with the ‘benefit claimers’ (or the custodians/stewards of the assets/knowledge who are sharing them), the concerned local body and the applicant seeking access. [Section 21]

Access to Forest Resources and Knowledge-gaps• Collections plants, insects, animals in the name of studies

– In 2008, the conviction of two Czech entomologists by the Supreme Court of India, for accessing beetles and butterflies from the forests of a National Park in West Bengal

• Traditional Forest Related Knowledge– Plant knowledge of the Onge tribes of the forests of Little Andaman Island, which in

the early 90s was discovered to have anti-malarial qualities– a fungus Yarsagumba (called ‘Himalayan Viagra’), which is found in the forests of

Uttarakhand is famous both in India and Nepal, for its properties as an immune booster and aphrodisiac

• Access to Forest Tree Germplasm– a researcher from an agricultural university in Chhattisgarh found himself embroiled

in a ‘biopiracy’ controversy when he allegedly passed on saplings of a rare variety of the oil-yielding jatropha plant to D1 Oils, a UK-based multinational corporation engaged in agro-fuel trade

• Tree ‘improvement’ and forest genetics• The genetic engineering of trees and the access

Benefit sharing-Gaps• The industry and most user countries unequivocally state that benefit sharing

will happen only if their intellectual property (IP) is legally protected• The patent law in India does not permit the patenting of traditional knowledge

per se. However– it requires vigilance to make sure that IPR in the form of patents are not wrongly granted on

products that might be derivatives of TK.– patent law does not prevent seeking of patents made from non-biological means such as

modern biotechnology– NBA can ask a person applying for a patent or any other form of IP, to share ownership of IPR

with either the NBA or identifiable benefit claimers, as a pre-condition for benefit-sharing

• PPV &FR Act 2001 grants a specific IP called plant variety protection (PVP) to breeders of trees and vines as well and it does not come under the purview of the ABS system under the BD Act (BD Act does not apply to any person making an application for IP under the PPV&FR law)

• Under the BD Act, those dealing with normally traded commodities (NTC s) are not required to adhere to the approval requirements laid down for gaining access to biological resources. The Environment Ministry has in consultation with state governments notified 190 such commodities that fall under the NTC list

Bhagat Mandli Case• The Dangs forest in the southern district in Gujarat, an area where the

Sahyadri, Satpura and Aravali ranges meet. The traditional healers of the area, commonly called bhagats, are the source of a significant body of knowledge about the curative qualities of plants in the forest.

• The Gujarat government gathered all the healers of this forest area into a Bhagat Mandli, and their knowledge was accessed and documented. This was made the property of the state by placing it in the State Gazetteer.

• Now a private company – Abhumka Herbal Pvt. Ltd.— will develop drugs based on these herbal cures (having been granted permission by the state sans a proper ABS procedure)

• It is yet to be determined how the benefits will be shared with the bhagats and their communities. Another issue that has not been factored in is that there could be counter claims from tribal communities belonging to the forest areas of Maharashtra and Madhya Pradesh, which border The Dangs

Protection of people’s TK versus grant of access for R&D and commercial use

• The Kani tribe in Kerala showed the way by sharing their TFRK, of medicinal plants in the forests they reside in, to not only government institutes like the state-run Tropical Botanic Garden and Research Institute (TBGRI), but also to private companies like Arya Vaidya Pharmacy (Coimbatore) Ltd.

• A Kerala Kani Samudaya Kshema Trust was established in the mid-1990s by the Kanis with assistance from TBGRI.

• A sum of money, part of the license fee paid by the company (AVP) to TBGRI, was transferred to its account to be used for the tribals in that area

• Several years on, the registered Society lies defunct and it is ironic that the community whose knowledge was used to produce the Jeevani drug, today struggles in the forest area for its own medical needs

Individual property Vs Collective Sovereignty • India, forests have mostly been managed under common

property regimes of ancient origin and biological resources were treated as ‘common heritage of (hu)mankind’ which led to wide-scale ‘biopiracy’

• ABS, is fundamentally premised on commodifying, privatising and trading biological resources and their related knowledge

• This is in contradiction to the practices of forest dwellers who have traditionally not considered their habitats as property

• The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA), too takes the path of protecting individual legal title/s by so providing within the legal framework and with the overall emphasis in its implementation. But its reference to TK in the context of forests has not been explored for the protection of TFRK.

Way forward• How does one actually do the valuation of local living resources and

knowledges? And who does it?• Are there just and fair ways to deal with shared heritages and

common resources?• Does monetary compensation make good the loss of

forest/biodiversity/knowledge?• Does the ABS framework result in ceding control over

resources/know-how to those outside the communities?• Can decision-making be re-localised and ‘benefits’ defined by the

benefit-claimers themselves? • Moreover, would that be adequate to counter the larger issue of

financialisation of the benefit-sharing principles and biological material itself.

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