Abstract
Resource-dependent communities living in different regions are dependent on either wild or cultivated ecosystems for livelihoods. Access to bioresources for local trade and exchange of biological products has generated sustainable livelihoods for generations. The international and national legal framework for Access and Benefit Sharing (ABS) has been put in place, to ensure that access to biological resources is legal and benefit sharing equitable, but there are many challenges which come into play. The challenges are mainly (a) the dynamism of biodiversity and knowledge which makes it difficult to identify owners and create ABS contracts, (b) defining what the bioresource which is being accessed is and (c) the challenges related to enforcement and compliance of both the provisions of the Biological Diversity Act as well as conditions of access. For local communities to have a stake in the law and its implementation, they would need to establish themselves as the benefit claimers. The chapter deals in detail with the three main challenges for implementation of ABS framework in India with specific case studies.
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The CBD in Article 2 defines ‘genetic material’ as ‘any material of plant, animal, microbial or other origin, containing functional units of heredity’.
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The full text of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization can be accessed at https://www.cbd.int/abs/about/
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Statistics from the NBA website as accessed on 16 May 2015 http://nbaindia.org/content/683/61/1/approvals.html
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Section 40 of the BD Act.
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NBA’s data for 2014–2015.
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ABS application process on the NBA web site as accessed on 16 May 2015 http://nbaindia.org/content/684/62/1/applicationprocess.html
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http://nbaindia.org/blog/602/47//CommentsSolicitedo.html The NBA had sought public comments on the Draft Access Guidelines and Draft Benefit Sharing Guidelines in May 2013.
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The BD Act defines commercial utilisation as ‘end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping’.
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The CBD defines traditional knowledge as ‘the knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds. Sometimes it is referred to as an oral traditional for it is practiced, sung, danced, painted, carved, chanted and performed down through millennia. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general’.
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Article 2(a) of the BD Act.
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NBA statistics updated as on 31/08/2015 http://nbaindia.org/content/683/61/1/approvals.html
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The main outcome of the CBD COP10 in the city of Nagoya, Japan, is the Nagoya ABS Protocol. It is here that CBD countries agreed upon an IR on ABS. The IR contained in the protocol lays down a text by which ‘benefits’ arising out of any kind of use of biological material and associated traditional knowledge when accessed need to be followed through. But the question is whether it makes things any better for provider countries, and in doing so does it guarantee ‘benefits’ to local communities or further conservation? India has ratified the Nagoya Protocol in October 2012 during the COP 11 deliberations in Hyderabad where India was the host country. However, the protocol is yet to be operationalised.
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Kohli, K., Bhutani, S. (2017). Can Benefi ts Be Shared? Three Tangles for Access and Benefit Sharing. In: Laladhas, K., Nilayangode, P., V. Oommen, O. (eds) Biodiversity for Sustainable Development. Environmental Challenges and Solutions, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-319-42162-9_7
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