The Hindu : Regulation of biodiversity

Online edition of India's National Newspaper
Saturday, Dec 14, 2002

Opinion

Opinion - Editorials

Regulation of biodiversity

WITH THE PASSAGE of the Biological Diversity Bill 2002 by both Houses of Parliament, the legislative infrastructure is now in place for a sustainable use of India's bio-resources that would aid conservation and simultaneously provide remuneration to local communities for protecting species and developing traditional knowledge. But the risk is there, as in all laws that give the Government additional powers, that the new rules and regulations will be used to harass rather than benefit the very communities which are to be served by the new legislation.

India is home to 8 per cent of the recorded species in the world and is the first country of "mega" diversity to have enacted legislation that will govern extraction and use of biological resources. India's law will be consistent with the 1992 U.N. Convention on Biological Diversity, which laid down the international framework for conservation, sustainable development and equitable sharing of benefits from the utilisation of genetic resources. The Indian legislation will provide the instruments for prevention of bio-piracy and simultaneously encourage domestic use of bio-resources. These will be in the hands of a three-tiered structure of organisations. Bio-piracy, which is the development by foreign companies of commercial products using local resources or traditional knowledge without providing any remuneration, is to be prevented by the new National Biodiversity Authority. Any foreign institution or individual which wants to use Indian genetic resources for commercial development or even for research will have to first obtain permission from the NBA, which will be the apex organisation overseeing the regulation of India's genetic resources. The NBA will also have to first approve the commercial utilisation of any intellectual property that may arise from the development of native genetic resources. Indian organisations and citizens engaged in similar development of genetic resources will not be governed by these restrictions, but they will have to work with the State Biodiversity Boards. At the grassroots will be the Biodiversity Management Committees that will be responsible for preparing inventories of species in the area and administering the sharing of benefits flowing from the use of local resources. These benefits will be provided to individuals and groups of people from the Biodiversity Funds that will be created at the national, state and local levels and will be financed by the payments made for the use of genetic resources.

The proposed institutional structure is appropriate for sustainable use of India's bio-resources, but the first question is if the mechanisms will function properly. For instance, through what channels will payments be made to the communities which have so far protected the genetic resources? How will the communities which are to receive these benefits be identified? How will traditional knowledge be "protected" as visualised in the Bill? While these are some important questions governing implementation, the biggest concern must be that the new rules for conservation do not become instruments for a denial of customary rights. Parallels already exist for such abuse of the rules and regulations on conservation. In the name of forest protection, local communities are often denied access to the forests. In the same manner, the new regulatory powers that the Central and State Governments will now have for protection and conservation of bio-resources can be used to prevent local communities from harvesting local genetic resources. The question is if the lessons from forest management practices have been learnt. Another set of issues that will arise in the future is the consistency between India's biodiversity legislation and the World Trade Organisation's agreement on Trade Related aspects of Intellectual Property Rights (TRIPS). This is part of a larger issue of consistency between the CBD and TRIPS, since the CBD explicitly calls for payment to local communities and traditional knowledge while the WTO agreement does not recognise the rights of local communities to any returns from the commercial development of bio-resources.

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