Abstract
The Nagoya Protocol on Access and Benefit-Sharing was adopted to help clarify the existing provisions regarding access to biological resources in the Convention on Biological Diversity. India’s domestic access and benefit-sharing (ABS) mechanism leaves much to be desired in terms of legislative design and with regard to its adherence to the environmental principles of public participation and equity. This article highlights the emerging legal issues pertaining to these aspects of ABS under India’s Biodiversity Act. Its discussion makes a case for revamping the legislative and institutional framework for effective ABS in India.
Keywords
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) 1 is lauded as an important achievement for the international community in the area of biodiversity regulations. The hope was that bio-piracy (the exploitation of biological resources without permission, or of traditional knowledge without acknowledgement) could be regulated with the help of the mechanism for “access and benefit sharing” (ABS) adopted in the Convention on Biological Diversity (CBD). 2 This would be a major step toward achieving the three objectives of the CBD: “conservation of biodiversity; sustainable use of its components; and fair and equitable sharing of benefits arising from the utilization of genetic resources”. 3 The ABS mechanism was originally mandated in the CBD; the Nagoya Protocol was needed to clarify the original provisions.
The aim of the Nagoya Protocol is to facilitate ABS implementation as a pragmatic mechanism for sustainable use and development of biodiversity. This is indeed an important development for India, where the bio-piracy issue had already reached general awareness: commercial attempts to patent natural plants and traditional knowledge of their use (neem and basmati) had highlighted the need for a strong domestic framework for the protection of biological resources and associated traditional knowledge. 4
In 2014, as a measure to implement the Nagoya Protocol, India promulgated a new regulation entitled “Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014” (ABS Regulation) under its Biodiversity Act. After almost half a decade’s efforts to create a domestic legal framework for access and benefit-sharing, key questions about equity in benefit-sharing, public participation in decision-making, and sustainable use of resources still remain largely unanswered.
This article highlights the emerging legal issues pertaining to the public’s role in ABS under the Biodiversity Act in the Indian context, and identifies the following aspects of concern in India’s ABS decision-making process: lack of public participation, lack of free prior informed consent, the nature of biocultural rights and their impact on the domestic organisations accessing biological resources, as shown through an analysis of the DivyaPharmacy case.
This stocktaking suggests that India’s domestic ABS mechanism leaves much to be desired from law and policy in terms of legislative design and adherence to the environmental principles of public participation and equity. The emerging jurisprudence pertaining to biocultural rights also suggests challenges for the biodiversity regulatory framework in India.
Critical Role of Public Participation
Public participation in the decision-making process is an element of international environmental law. The New Delhi Sustainable Development Declaration 5 clearly states that public participation in environmental decision-making is a significant requirement for the realisation of sustainable development. The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) 6 has helped in evolving an important role for public participation in the environmental decision-making process in the European Union.
In Indian environmental jurisprudence, public participation is emphasised in the Environmental Impact Assessment (EIA) rules as well as in the forest-dwelling indigenous community rights legislation. 7 The Supreme Court of India has noted the significance of public participation in the Indian context when adjudicating on environmental matters.
Thus, for effective sustainable environmental decision-making, in all the stages of the decision-making process, stakeholder participation is considered important. In the Indian context, the relevance of public participation in biodiversity regulation needs to be highlighted.
1.1 Public Participation in the ABS Decision-making Process
Legal scholars have stated that “effective implementation of any convention requires the participation of stakeholders and in terms of Nagoya Protocol, it is the role of common public, which assumes significance. Participation of indigenous communities and capacity building of women and the right to development also are part of the Protocol”. 8 The lack of effective public participation in the present biodiversity regulation in India is clear from various field-based observations made by environmental lawyers, 9 especially at the local level, in Biodiversity Management Committees (BMCs).
1.1.1 Nagoya Protocol Provisions on Public Participation
Article 12.2 of the Nagoya Protocol calls on Parties to address these public participation needs: Parties, with the effective participation of the indigenous and local communities concerned, shall establish mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations, including measures as made available through the Access and Benefit-sharing Clearing-House for access to and fair and equitable sharing of benefits arising from the utilization of such knowledge.
Article 12.3 discusses possible tools for such work, including “community protocols in relation to access to traditional knowledge associated with genetic resources and the fair and equitable sharing of benefits arising out of the utilization of such knowledge”. Community protocols are an evolving concept, which are to be developed with “the effective participation of the indigenous and local communities concerned”.
1.1.2 Lack of Public Participation in India’s Biodiversity Legal Framework
In fulfilment of its obligations under the CBD, India enacted its national Biodiversity Act in 1992. That legislation sets out a three-tier mechanism for biodiversity regulation with the National Biodiversity Authority (NBA) holding the power at the central/federal level. At the other two levels, the protection and sustainable use of biodiversity are governed by the State Biodiversity Boards (SBBs) and (panchayat-level) BMCs, respectively. These mechanisms are entrusted with the responsibility of biodiversity mapping and preparation of the People’s Biodiversity Register. In both of these processes, the help and participation of the local community is mandatory.
In India, at present, the mapping of the People’s Biodiversity Register has still not been completed. This is clearly a major problem. The lack of proper mapping could lead to ground-level issues relating to effective implementation of ABS –a mechanism that requires both identification and acknowledgment of biological resources as well as the traditional and indigenous knowledge pertaining to them. Mapping of biological resources requires a joint effort from all three tiers of biodiversity regulatory bodies.
Recognition of local communities’ knowledge and ensuring local participation, however, have not yet become a reality. These tasks require proper institutional capacity as well as effective use of the participatory approach. Due to the lack of effective regulatory and institutional capacity, the panchayat BMC level is experiencing a clear lack of information and failure of public participation.
The Biodiversity Act’s three-tier mechanism depends on a clear hierarchical and command control framework. At present, however, local communities are not properly integrated into the BMCs’ operations.
The bottom-up approach to biodiversity regulation needs special focus in the Indian context to bring in the diverse experience of the communities with regard to biodiversity at the local level. The present biodiversity legal framework in India fails to factor in this need, which might begin with community protocols (as mentioned in the Nagoya Protocol) as an initial step towards establishment of the ABS mechanism. This would help in what is, essentially, a community-oriented collective biodiversity policy-making regarding ABS. The ABS Regulation also fails to accommodate the requirement of framing and developing capacity-building regarding community protocols. Community participation is all the more important in ABS decisions, since “access may also go against the tenets of conservation and sustainable use, and, in such instances a sharing of benefits may be deceptive”. 10
1.2 Free Prior Informed Consent
The concept of free prior informed consent (FPIC) has attained significant recognition in international environmental law. This recognition, especially relating to indigenous people’s rights and community rights, is a significant development in the public international law sphere.
1.2.1 FPIC in the ABS Decision-Making Process
FPIC has major relevance to the ABS decision-making process. The local community needs to be actively involved in the process of determining whether access should be provided as well as in determining the benefit-sharing mechanism. The issue of whether the benefit-sharing will be based on monetary or non-monetary benefits requires attention. This is again an area where the local community and beneficiary holders should have more power in the decision-making process.
The Nagoya Protocol explicitly communicates the role of prior informed consent (PIC) in Article 6:
In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that the prior informed consent or approval and involvement of indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources.
Article 6 also specifies that the process and guidelines regarding obtaining PIC are to be developed at the national level.
1.2.2 The lack of FPIC in India’s framework
At present, India’s regulatory framework fails to accommodate the need for explicit imposition of an FPIC requirement with the community. It contains no requirement of consent from the community or beneficiaries. The law also fails to provide any significant role for the BMCs, stipulating only that the relevant BMC is to be consulted in the ABS decision-making process as per the Biodiversity Act.
At present, consultation of the BMCs is also not treated as a significant requirement by the SBBs and NBA. The ABS Regulation, silent on the requirement of FPIC, has not addressed the need to ensure the involvement of the community or those claiming or seeking a share of benefit. The report of an assessment of the existing regulatory issues in biodiversity, compiled by a civil society organisation in India, points out,
It would be difficult to bring the requirement of prior informed consent mandated under the [Nagoya] Protocol within the meaning of [the Biodiversity Act’s reference to consultation]. Currently, the State (Provincial) Biodiversity Boards provide information regarding consultation with the BMCs in making a decision on ABS applications. 11
The mention of consultation in Section 41 of the Biodiversity Act needs major reworking to bring about effective public participation and implement the norms of FPIC. That Act’s ABS provisions, especially Sections 19, 20 and 21, also need special attention and revamping to incorporate FPIC norms.
The Emergence of “Biocultural Rights” Issues in India’s ABS Framework
The access regulation under India’s biodiversity law has become controversial through the Uttarakhand High Court’s recent decision in the Divya Pharmacy case, 12 which stated that Indian companies or organisations should also pay when they access the country’s biological resources, not just foreign companies. That case addressed as its primary question the legality and fairness of requiring an Indian company to pay when it accesses biological resources available in India. A similar case has been filed in Bombay High Court in India, with the companies questioning the fairness of stipulating monetary benefit-sharing for the Indian entities.
In general, the Uttarakhand High Court order is based on the Court’s interpretation of the fair, equitable benefit-sharing framework established under the Biodiversity Act. The present Indian situation raises crucial questions about biodiversity protection through sustainable use and ensuring equity. Moreover, the Biodiversity Act does not specifically differentiate between foreign entities and domestic entities in this context. The attempt to trivialise the entire intent of the ABS mechanism must be considered in this context. Opponents of the access payment provisions are suggesting that the Biodiversity Act is a regressive legislative measure, to the extent that it imposes restrictions on domestic Indian entities that seek to tap the country’s biological resources for commercial purposes.
In a sense, the Court’s decision recognises a significant need, for the protection of biocultural rights. In this sense, it has been noted that, “[b]iocultural rights are group rights but they differ from the general category of ‘third generation’ rights through their explicit link to conservation and sustainable use of biological diversity”. 13 The Indian companies accessing the biological resources protected under the Biodiversity Act have an obligation to respect the biocultural rights of communities and other benefit-holders. In this regard, the Uttarakhand High Court’s decision could constitute a significant contribution to the concept of biocultural rights in the Nagoya Protocol.
The Divya Pharmacy case also points out that a biocultural-rights-based, bottom-up decision-making process is required. Even where the users are Indian companies, ABS decision-making should be done through public participation. Moreover, the biodiversity regulations should make it clear that Indian-based corporate organisations are not exempted from the ABS regime, reflecting the Nagoya Protocol’s indication that the development of community protocols should address the concepts of sustainable use, as well as ABS.
Equity-related Implications of India’s ABS Framework
The administrative mechanism envisaged in India’s ABS-related legislation fails to provide any major step towards equitable benefit-sharing for local and indigenous communities. Section 21 of the Biodiversity Act empowers the NBA to provide the terms and conditions for the equitable sharing of the “benefits arising out of the use of accessed biological resources, their by-products, innovations and practices associated with their use and applications and knowledge”. 14 The NBA’s determination may impose both monetary as well as non-monetary benefit-sharing. For benefit-sharing to meet the “fair and equitable” standard, however, the process must include clear participation of the community or communities and other benefit claimers involved. At present, as noted earlier, the ABS regulation does not mandate consultation with local communities in setting the ABS terms.
Another related challenge is the identification of beneficiaries; this constitutes an important impediment in the present regulation. While the Biodiversity Act mentions the definition of benefit claimers, there are no proper guidelines for identifying them as well as ensuring that their views are involved in the equitable benefit-sharing process anywhere in the legislative framework. The NBA should be required to develop a stakeholder engagement method which would help in inclusive policy and decision-making.
The Biodiversity Act has been widely criticised. Criticisms range “from the legal status of genetic resources, lack of clarity on commonly held resources and knowledge, and the efficacy of domestic legislation to counter ‘bio-piracy’ to an overemphasis on access to genetic resources in the regulatory framework”. 15
Another factor that has received less attention is the lack of equity and fairness regarding sustainable use of biological resources. Where ABS decision-making occurs without the consent of the local community, the results could be problematic for sustainable use as well as biodiversity conservation. This raises the question whether the community can deny access in cases of possible resource depletion or any other adverse impact on resources.
As academic writings have pointed out, access itself can be disenfranchising for both local communities and weak governments. Apart from the issues of “conservation and sustainable use”, 16 the dimension of benefit-sharing can itself be problematic –potentially a “deceptive practice”. 17
Way Forward for an Effective ABS Framework
It is increasingly necessary to explore, in the Indian context, the manner in which the biodiversity regulations could be made more effective and in consonance with the Nagoya Protocol. The existing legislative framework’s lack of clarity regarding public participation and equity is quite evident, and clearly needs to be addressed. The present ABS regime allows for regulatory capture of community rights and resources, by corporate organisations, especially in light of pressure to interpret the legislation in a narrow manner so as to benefit their vested interest.
At present, the biodiversity legal framework is providing fragmented protection, particularly from the perspective of biocultural rights. Local communities as a class are not yet properly identified or defined. The participation of local communities in the decision-making process is crucial for effective long-term sustainable use of biological resources.
This article makes a case for revamping the legislative and institutional framework for effective ABS in India. Although the pressure to adjust the legal framework to comply with international instruments and principles has led India to make certain cosmetic changes in its biodiversity protection regulation, the essence of public participation, FPIC as well as biocultural rights have yet to be effectively transplanted into the Indian framework. Proper revision efforts in accordance with progressive judicial decisions such as the Uttarakhand High Court’s decision in the Divya Pharmacy case would help towards ensuring consonance with the Nagoya Protocol. The institutional framework implementing the biodiversity regulations, including the NBA, SBBs and BMCs, should be aligned for proactively ensuring public participation as well as protecting biocultural rights.
Footnotes
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity, UNTS A-30619 (adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October 2014).
The Convention on Biological Diversity, UNTS I-30619 (opened for signature on 5 June 1992 at the United Nations Conference on Environment and Development (the Rio “Earth Summit”) and entered into force on 29 December 1993).
Ibid., Article 1. “Genetic resources” include plants, animals and micro-organisms.
Shiva, V. 2016. Biopiracy: The Plunder of Nature and Knowledge. Berkeley CA: North Atlantic Books.
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, UNTS I-37770 (signed on 25 June 1998 in Aarhus, Denmark and entered into force on 30 October 2001).
Environmental Impact Assessment Notification, 2006; and Section 4, Forest Rights Act, 2006.
Stellina, J. 2015. “Access and Benefit Sharing under Nagoya Protocol and Sustainable Development: A Critical Analysis”. Agora International Journal of Juridical Sciences 9(3): 38–45.
Kohli, K. and Bhutani, S. 2013. “The legal meaning of biodiversity”. Economic and Political Weekly 48(33): 15–17.
Bavikatte, K. and Robinson, D.F. 2011. “Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing”. Law, Environment and Development Journal 7(1): 35–51.
Divya Pharmacy v. Union of India, Uttarakhand High Court (India), Judgment delivered on 21.12.2018.
Supra, note 10.
Section 21, Biodiversity Act, 2002 (India).
Kohli, K. and Bhutani, S. 2015. “Access to India’s Biodiversity and Sharing Its Benefits”. Economic and Political Weekly 1(31): 19–22.
Supra, note 10.
Ibid.