Withering public consultations

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09 June 2016

There is a law to protect biological diversity in India – the Biological Diversity (BD) Act, 2002. The law prescribes that before taking any decision to commercially use, research upon or seek proprietary rights either on biological material or related people’s knowledge, there is a procedure to be followed that involves people.

This procedure, amongst other things requires a process, however feeble, of consultation with local biodiversity management committees (BMCs), which are to be set up across India under the very same law. Even without the full implementation of this legal requirement the possibility of public participation might be at risk of fading away.

With the enactment of the legislation, there were regulatory procedures put in place for both Indian and foreign entities using any Indian biological material for commercial application and even R&D. Pharmaceutical industries using animal extracts, international research centers accessing seed germplasm for experimentation, biofuel manufacturers wanting ethanol producing plants, all need either permissions from the Centre or intimate the State(s).

For foreign entities, this law requires seeking permission from the Chennai based National Biodiversity Authority (NBA) and for any Indian it means intimating the respective State Biodiversity Boards (SBBs), unless it is a question of intellectual property rights (IPRs) in which situation too Indian persons need NBA approval.

Researchers, government institutions or private entities seeking patents, geographical indications, etc. over an invention based on research and information on any Indian biological resource, need to go through a process which requires a mandatory consultation with the BMC. This is irrespective of whether they are Indian or foreign. Such is the requirement of Section 6(1) of the BD Act.

Why approvals are required

Each time an approval is considered, it cannot be decided upon without mandatory consultations with the relevant BMC to be set up at the level of every village panchayat or urban municipality. This is for three purposes at least. First, the use of the bioresource or related knowledge around it should not be so extracted, that it negatively impacts the very existence of it. If an extract of a medicinal plant is found to be important for creating new cures, it should not be so over-extracted that it disappears from the every habitat it was originally found in.

Second, no one should be able claim a local practice around the existing use of that material as his/her/their invention if it is not so. This cannot be confirmed sitting only in government offices and moving files between the Centre and the state. Something as dynamic as biodiversity and living knowledge needs wider input, the very least of from the areas under the local-level BMC from where there the genetic resource or people’s know-how is taken from.

The third reason for these consultations is to ensure that fair and equitable benefit sharing ensues post approval of access. Once the use of biological material and germplasm is approved, it needs to be ensured that the benefits arising out that use either through commercial application or claiming intellectual property are shared. This might be with one BMC or many depending upon the geographical spread of the use of that material or knowledge.

The changes proposed

The above requirements might be up for change. The NBA in its 37th meeting in March 2016 had an agenda item to that effect. To state it verbatim, the agenda item listed seeks: to consider dispensing with the consultation with the BMC by the NBA/SBB for Form II and III application in respect of biological resources already accessed for undertaking research.

Form II are the category of access applications that come before the NBA to transfer research results to another non-Indian entity like a research centre, seed corporation or any person outside of the country. Form III relates to IPR applications.

NBA is contemplating over dispensing with BMC consultation, in instances like transfer of research results or approval of IPRs, when access has already been sought for research through existing (access) procedure. Local people will thus not be consulted again if a research leads onward to either transfer of the research material to non-India entities or if the research leads to a possible IPR.

It is not clear so far what the logic behind this proposal is. This is significant because IPR applications comprise the bulk of the access applications before the NBA. Out of the 277 approvals granted by the NBA as of date, 153 are those related to IPRs and 13 are for transfer of research results (see here), making them the more than half of all the permissions granted for access.

The implications

The question is why would the Environment Ministry, through its NBA not want to consult and keep the knowledge holders and local biodiversity managers on the ground informed? Particularly, when the BD Act was rationalised as a law needed to check ‘bio piracy’. For instance, would it not be ethically right and legally required to inform the farmer (who conserved native brinjal seed and agreed for it be shared for research), when a set of scientists or private company further passes it on or seeks IPR on it?

The details of the NBA meeting discussions on the matter are not available in the public domain as yet. If the NBA were to do away with BMC consultation, it would go against the international law – the Nagoya Protocol of the Convention on Biological Diversity (CBD), which mandates prior informed consent of local communities. Moreover, it would also reduce the already limited little space for people’s participation in the decision-making process that determines access to India’s bioresources and related knowledge.

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