Biodiversity governance: The agreements and laws that help enforce it

This is the first section in a three-part series

Extensive biodiversity loss in the past decades has spared neither developed nor developing countries. The extinction of species, over-harvesting, introduction of exotic species, habitat loss, pollution and climate change has led to an increased risk portfolio for marginalised communities.

This, in turn, has led to fears that the existence of life on Earth cannot be taken for granted. These concerns over biodiversity loss led to the gradual re-evaluation of integrating resource availability with mankind’s development needs.

The need for ecosystem stability and habitat heterogeneity has slowly taken credence over conventional economic standards such as gross domestic product.

Rapidly accelerating biodiversity loss led to a series of introspections and eventually a worldwide catharsis among countries that resulted in them coming together at the Rio Summit in 1992, where major legally binding conventions for the protection of nature — including the Convention of Biological Diversity (CBD) — were adopted.

More than 25 years have passed since 197 countries became party to CBD, with several of them taking significant steps to protect their biodiversity.

India — a key mega-biodiversity country — adopted the Biological Diversity Act (BD Act) in 2002 to halt and reverse effects of diversity loss.

The BD Act was hailed as an important step towards preserving our vast biodiversity and was considered a pioneer legislation as it recognised the sovereign right of countries over their natural resources. It also put restrictions on the access of bio-resources by user countries.

Access to genetic resources rested with the national government and was subject to national legislation, according to CBD. This decision shifted the balance of power of utilising bio-resources from user countries to provider countries.

Most of the world’s biotechnology-based patents are owned by developed countries, with the resources to make them sourced from mega-diverse country like India.

The BD Act was a game changer, ensuring conservation and sustainable use of resources, leading to proper sharing of benefits to local populations.

The message that the use of genetic resources should not bypass poor people went a long way in correcting historical injustices that provider countries suffered for centuries.

The CBD, in its spirit, laid the foundation for ethics taking priority over mindless exploitation and constantly sounded a nagging reminder to the international community in the form of Article 15 and Article 8 (j).

Article 15 of the CBD recognised the right of states to their genetic resources and Article 8 (j) recognised the rights of communities to their traditional knowledge.

With these guidelines in mind, most countries that signed the CBD met again at Nagoya in Japan in 2010 and adopted the Nagoya Protocol that aimed to give effect to the fair and equitable sharing provisions of the CBD.

The Nagoya Protocol — in its simplest interpretation — sought to ensure commercial and research utilisation of genetic resources led to sharing its benefits with the government and the community that conserved such resources.

BD Act in action

Under the BD Act, an important regulatory mechanism was the emphasis on access and benefit sharing (ABS) to local populations.

Having integrated ABS within a decade of CBD, India came to be regarded as a pioneer country: Only 105 of 197 countries that signed CBD formed a national legislation for regulatory use of bio-resources.

This initial initiative taken by the Union government went a long way in strengthening the case of securing benefits for its rightful owners for the coming decades.

The BD Act is a complex, multi-layered legislation that seeks to address issues of managing bio-resources in the most decentralised manner possible without compromising on the sovereignty of the country or community’s rights over these resources.

It became operational after the adoption of the Biological Diversity Rules in 2004. The act lists conditions under which persons, commercial firms and other institutions can access biological resources and the knowledge associated with them.

These resources can be used for either research, commercial utilisation, bio-survey or bio-utilisation.

The act, combined with other policies and laws, is being continuously strengthened to protect, conserve and sustainably use the country’s bio-resources.

It assumes significance because it imposes prohibitions on the transfer of genetic material originating from India without specific approval from competent authorities. The act also strengthens the country’s stand with respect to anyone claiming an intellectual property right over biodiversity-related knowledge.

Adopting ABS

With the adoption of the BD Act, focus shifted on actualising the tenets of CBD. It was felt that an efficient mechanism — acceptable to all countries and a reference point for issues of bio-resources — needs to be adopted.

For a process that began in 1992 with the CBD, the detailed action points were adopted under the Nagoya Protocol.

Almost immediately, countries began the process of implementing national legislations to adopt the regulatory frameworks and India, again, took the lead and adopted the ABS guidelines in 2014.

India’s stand leading upto the negotiations that finally led to the adoption of the Nagoya Protocol was of intense negotiations.

India was a victim of misappropriation or bio-piracy of our genetic resources and associated traditional knowledge, which were patented in other countries, said Prakaash Javadekar, the then Minister of State (Independent Charge) in the Union Ministry of Environment, Forests and Climate Change.

Well-known examples of this include neem and turmeric. It is expected that the Nagoya Protocol on ABS, a key missing pillar of the CBD, would address this concern.

India and other developing countries fought hard in several international negotiations to correct the historical wrong of being victims of bio-piracy and succeeded in scoring a major victory.

The BD Act helped create three structures: The National Biodiversity Authority (NBA) at the national level, the state biodiversity boards (SSBs) at the state level and biodiversity management committees (BMCs) at the local level.

These three bodies are statutory and autonomous in nature, while NBA and SBBs are body corporates. To ensure that independent autonomy exists, there is no overlap of NBA and SBBs on issues of ABS.

The BMC is a powerful statutory body which is an integral part of the legislative system setup by the BD Act.

BMCs are still in the initial stages of their formation. Their functioning has been plagued with a lack of interest by implementation agencies, lack of clarity among beneficiaries and concern in existing local bodies that their constitution would usurp existing powers.

BMCs still have a long road ahead before they shed their data collection tags and assert their authority as constitutionally mandated statutory bodies that can play a vital role in protecting the biodiversity of the land.

Watch this space for the second instalment of the series.

Views expressed are the author's own and don't necessarily reflect those of Down To Earth.