Access, benefit sharing of genetic resources gain ground in Asean

Ana Maria Tolentino and Sahlee Bugna-Barrer Business Mirror 14 Jan 12;

SERIOUS environmental concerns affect people and governments in the Asean region—climate change, pollution, forest fires and haze, access to clean water, land conversion, and mining, among others. One that is currently gaining greater attention is the issue of access and benefit sharing (ABS) of genetic resources.

In the past, there has been an imbalance in the use of genetic resources. Large companies—such as those in the pharmaceutical, cosmetics and mining industries—generally earn millions from exploiting the natural resources of another country, with little benefit going to the country of origin.

ABS aims to address this imbalance by providing international rules where benefits will equally accrue to both providers and users of genetic resources. ABS provides a further responsibility—for both rich countries and local communities rich with biodiversity—to conserve and sustainably biodiversity resources.

The issue of ABS was brought into global prominence when it became one of the three objectives of the UN Convention on Biological Diversity (CBD): 1) “the conservation of biological diversity; 2) the sustainable use of its components; and 3) the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding.”

ABS is an ongoing process, but its implementation has been spurred by the Nagoya Protocol on ABS, which was adopted at the 10th Conference of the Parties to the CBD in Nagoya, Japan, in 2010.

The Nagoya Protocol provides greater legal certainty and transparency for both providers and users of genetic resources by establishing more predictable conditions for access to genetic resources, and by helping to ensure benefit-sharing when genetic resources leave the contracting party providing such resources.

By helping to ensure benefit-sharing, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, and, therefore, enhances the contribution of biodiversity to development and human well-being.

ABS is a means of leveling the playing field in the use of genetic materials, particularly in the Asean region, where there is an astonishing wealth of biodiversity, but which has been exploited by many powerful foreign companies in the past.

Many Asean member-states have not obtained a fair share of the benefits derived from the use of their resources for the development of a number of highly profitable products, such as high-yielding crop varieties, pharmaceuticals and cosmetics.

The CBD has addressed this issue by recognizing the sovereign rights of States over their natural resources and stating that the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.

ABS also recognizes the rights of indigenous peoples, who, for generations, have lived close to nature and generated traditional knowledge of the qualities, behavior and other salient characteristics of the natural world. This traditional knowledge has been a fountain of information that has been tapped in bio-prospecting activities of various companies that aim to benefit from natural resources and the knowledge of their stewards.

ABS not only protects natural resources, but also ensures that intellectual property rights laws will protect traditional knowledge.



ABS in Southeast Asia

ABS is gaining ground in the Asean region.

In the Philippines Executive Order (EO) 247 was adopted in 1995—the first in the world—which prescribes the guidelines and procedures for the prospecting of biological and genetic resources.

In 2006 the National Commission on Indigenous Peoples issued Administrative Order (AO) 1 entitled “Free and Prior Informed Consent [FPIC]” Guidelines of 2006.

The AO requires persons or entities to obtain the FPIC according to customary laws before conducting any activity within the ancestral domain to ensure that these are consistent with traditional practices and to ensure fair and equitable sharing of benefits with the concerned community.

The Philippines’s Indigenous Peoples Rights Act provides that indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual rights. They also have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations.

Malaysia is one of the pioneers in the Asean region in initiating an institutional framework for ABS when Sarawak became the first State to pass an ABS law in 1997.

The state has a Sarawak Biodiversity Centre, a state statutory body that facilitates traditional knowledge documentation, propagates indigenous plants for conservation and appreciation, conducts awareness and appreciation on biodiversity biotechnology, implements research and development program on bioprospecting, and regulates research with commercial potential in Sarawak.

The State of Sabah followed suit through the Sabah Biodiversity Enactment of 2000 which established the Sabah Biodiversity Council and the Sabah Biodiversity Center. The center regulates the access to biological resources and includes the creation of an ABS Toolkit in Sabah.

Cambodia has enacted several legislations concerning natural resource protection, among them, a Land Law, enacted in 2001 to promote certainty in issues of land ownership and recognizing communal rights and rights to land ownership by indigenous communities.

It also enacted a Forestry Law in 2002 which was then followed by the issuance of a Community Forestry Sub-Decree in 2003 in National Forest Policy.

Cambodia has yet to develop its own ABS regime and is still in the process of fully understanding the Nagoya Protocol and the issues that may arise which will directly affect its people and sovereignty.

In the meantime, an initial step was taken by the Cambodian government, through a meeting of the National Assembly, to collectively discuss new international agreements, including the Nagoya Protocol.

Future steps to be taken include the translation of the Nagoya Protocol into the Khmer language and its distribution to National Assembly members and various ministries.

Brunei Darussalam has started documenting traditional knowledge, innovation and practices involving nongovernmental organizations and local communities, creating databases on indigenous knowledge.

From 1998 environmental management in Indonesia has been strongly influenced by the decentralization of power to the regions. The Forestry Law 41/1999 and its implementing instrument, Government Regulation 34/2002 on the Management, Exploitation and Use of Forest Areas, is one of the key natural resource management legislative acts. A draft Natural Resources Management Plan is currently being prepared.

In 1982, Indonesia implemented a National Conservation Plan, which underwent subsequent assessments in collaboration with the World Bank in 1993 and 1995. The plan outlined several action points addressing biodiversity traditional knowledge and ABS.

In Lao PDR, progress has been made in reviewing existing laws and regulations related to biodiversity, including the revision and adoption of the Forestry Law and enactment of the Aquatic and Wildlife Law in 2007. The Environmental Protection Law is also undergoing revision and improvement.

The establishment of the new Department of Forestry Inspection in 2008 was considered a major step forward in an effort to control the use and reduce the loss of forest and biodiversity resources. The 2004 National Biosafety Framework and the Government Policy on Biosafety identifies ABS and traditional knowledge as priorities of Lao PDR.

Myanmar has a National Environmental Policy, which forms the basis for developing environmental strategies, programs and plans in connection with the “Myanmar Agenda 21,” a policy instrument prepared for the Rio Summit of 1992.

The legislations which impact genetic resources in Myanmar are the Forestry Law, the Protection of Wildlife and Wild Plants and Conservation on Nature Areas Law, and the Science and Technology Development Law.

For enhancing and securing involvement of indigenous and local communities and all relevant stakeholders, the Myanmar Forest Law of 1992 allows property rights and privileges for people living in and around the protected areas.

In Singapore the legal basis for conservation has been improved and strengthened by amendments to the National Parks Board Act 2005 and the Parks and Trees Act 2005.

A National Biodiversity Strategy and Action Plan is also in place with the Plant Conservation Strategy and the Bird Conservation Strategy as examples of Singapore’s implementation of measures in the field.

The issuance of research permits related to biological research help in monitoring the usage of biological and genetic diversity.

Protection of traditional knowledge, innovations and practices is not being applied in Singapore because of the lack of traditional and indigenous communities and traditional knowledge.

Singapore has participated with other Asean countries in the drafting of a framework agreement on ABS. It is also a signatory to the Asean Framework Agreement on ABS.

Thailand is one of the most biodiversity-rich countries in the world with high species diversity and 8 percent of the world’s known species.

New laws are planned to support the 1999 Law on the Protection of Thai Intelligence and Traditional Medicines, the 1999 Thai Variety Plant Protection Act and a Framework of Policy and Prospective Plan for Enhancement and Conservation of National Environmental Quality for 1997-2016.

The 1999 Plant Species Protection Act provides protection to new plant species, traditional plant species (local and in general), and in forest plant species.

The Thai Government’s Biodiversity Policy of 2009 focuses on the protection and restoration of conservation areas that are important to the preservation of ecology in support of biodiversity conservation. The policy is implemented through surveys, database development, conservation and development.

The Country Management Plan of 2008-11 is Thailand’s fourth policy on land, natural resources and the environment which promotes conservation, development, and sustainable utilization of biodiversity in order to yield better economic benefits.

As its goal, the policy seeks a balance between biodiversity conservation and biodiversity development.

Also worth mentioning is the Policy, Measure and Plan for Sustainable Biodiversity Conservation and Utilization, 2008-12—the instrument seeks to enhance the abundance of biodiversity as a secure foundation for the Thai way of life.

Vietnam has a Land Use Rights-certification system. However, education on the process of applying and implementing these certificates is needed.

In Vietnam’s World Intellectual Property Organization (Wipo) Survey Response, it was reported that there are very few legislative efforts in the area of genetic resources and almost none in the protection of traditional knowledge.

The Forest Science Institute of Vietnam, which is the leader institution for conservation, received continuous funding from the Ministry of Science and Technology (MOST) for research on conservation of forest genetic resources. MOST is responsible to the government for state management of research and development activities in science and technology, including biotechnology.

Legislation regarding access, property rights and benefit sharing of genetic has not yet been formulated, however. Worth noting is the approval of the Biodiversity Law in 2008 followed by its implementation in 2009.

In 1994 the Vietnamese government promulgated the Resolution 18/CP on the development of biotechnology in Vietnam.

Presently, the relevant legislation to ABS are: a) Agreement Between the US and Vietnam on Trade Relations, 2000; b) Law on Environmental Protection, 1993; c) Land Law, 1993; and the d) 2001 Decision 08/2001/QD/Ttg to issue the regulation for management of special-use forests, protection forests and production forests as natural forest.