This article is written by Arushi Sharma, a student of the National Law Institute University, Bhopal.
BIODIVERSITY ACT, 2002: BACKGROUND AND AIMS
The Indian landscape possesses a rich biodiversity spread over the geographical length and breadth of the country. India is one nation naturally endowed with resources that provide a sustainable ecosystem not only to the flora and fauna endemic to the region but various indigenous communities dependent on these ecosystems. Considering the developmental trail the nation is on there exists an obvious dilemma whether to forego this abundant yet destructible biodiversity in lieu of achievement of goals of economic growth. Clearly making the latter choice would be penny wise but pound foolish alternative, as sustained economic growth is intertwined with natural resources.
The Government being aware of the significant costs a nation like India could incur if the vulnerable and much-needed biodiversity is not put under a protection regimen, rightfully became a party to the International Convention on Biodiversity which was one of the agreements adopted during the Earth Summit held in Rio De Janeiro in 1992, being one of the first to address the relating aspects of biodiversity. The Convention, while reaffirming sovereign rights of nations over their biological resources, establishes three main goals: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of genetic resources. This paper would exclusively focus on the third goal relating to benefit sharing of genetic resources in furtherance of which the Nagoya Protocol was signed in 2011 after intense negotiations.
The Biological Diversity Act, 2002 establishes a National Biodiversity Authority as a national authority to regulate access to Indian biodiversity for commercial and exploitative purposes and protect intellectual property of the country relating to biological resources. The function of Access and Benefit Sharing (ABS) is almost an impossible task to be undertaken by any national authority. To assist them for the same and advise them on matters exclusive and of particular interest to the biodiversity of the State, similar Boards have been established in States under Section 22 of the said Act. So far 25 States have established State Biodiversity Boards while the National Biodiversity Authority operates in States which haven’t yet established them. The powers and functions of the same have been listed down in Section 24 and Section 23 of the Act. However, the question arises if these functions and powers bestowed on the Boards are adequate and whether the rights of communities specific and indigenous to the States are upheld in relation to the commercial exploitation of biodiversity as has been widely undertaken by vested corporate interests. Also attention towards protection of intellectual property of the indigenous populations which survive through biological resources must be drawn.
ANALYSIS OF THE STRUCTURAL AND FUNCTIONAL ASPECTS OF STATE BIODIVERSITY BOARDS
The State Biodiversity Boards (SBB’S) established under this Act have the function of advising the State Government on matters of biodiversity and its equitable distribution and utilization in tandem with the guidelines of the Central Government but more importantly to regulate granting of approvals or requests for commercial utilization of biological resources as given under Section 23. The point of concern here is that such regulations are restricted only to Indians. Also, as given under Section 7 of the Act, the State Boards require a prior intimation for obtaining biological resources only from Indian citizens or corporate associations or organizations registered in India. In these times of economy without boundaries with foreign stakeholders often having a greater share in organizations and corporations, this power of the State Biodiversity Boards which is applicable only on Indian citizens or organizations can be easily exploited by vested interests of commercial giants which have substantial overseas shareholders.
The Biodiversity Act provides for payment of a prescribed fee to the Biodiversity Management Committees established at the Municipal or Panchayat level under “Access and Benefit Sharing “by companies who are using biological resources or use traditionally available knowledge which is often a bone of contention between companies and these Boards as they possess the power to grant them access to bio-resources of the State. Since the grant of approval by the State Boards is only restricted to Indian companies and organizations the tactic of employing commission agents to get this approval is widely used for commercial exploitation as approval from the National Biodiversity Authority implies a cumbersome process requiring strict adherence to established regulations. Thus, companies are little concerned about obtaining such approvals as until even after half a decade of passing of the Act there hardly had been any reporting of violations. But since the threat of depleting biodiversity reserves now looms large on the country and the detrimental effects of the same have been adequately established on long-term sustainability of economic growth the State Boards have taken to task the violating parties. Recently, Uttarakhand Biodiversity Board issued notices to 350 companies violating the provisions of the Act but on the contrary there have been instances where notices served by boards such as the Telangana State Biodiversity Board have met with no response from the companies which goes on to show that recalcitrant companies must be dealt with a firm hand and judicial measures must be resorted to for keeping a check. The multinational giants also deny accountability to State Boards and continue with practices of transporting substantial biological and genetic resources. The State Boards thus remain to be in no position to bargain as these organizations are not “Indian” over which the jurisdiction of these Boards resides, reports of violation to the National Biodiversity Authority are often met with a delayed response, and meanwhile relentless commercial exploitation of State bio-resources continues unchecked despite the Boards being aware of the same.
COMPETING AND ACTUAL INTERESTS OF THE STATE BIODIVERSITY BOARDS
Though these Boards have powers to grant approval towards commercial utilization of State bio-resources, it cannot be said that concern for biodiversity would necessarily prevail over lucrative commercial interests of a developing State. The case where the Madhya Pradesh Biodiversity Minister lobbied for industrial interests making the Board obtain a mandatory approval from the Cabinet before serving notices to violating companies which is clearly against Section 7 of the Central Act has drawn enough flak to put under question the true intention of the State governments in upholding the provisions of the National Biodiversity Act over the industrial and commercial interests of the State. Contrary to this, State Boards like that of Telangana are proceeding to convince MNC’s of their accountability to the National Biodiversity Authority particularly those relating to seeds and pharmaceuticals and export of similar indigenous genetic material abroad. The Board is also making efforts to get them to pay the prescribed fee to Biodiversity Management Committees (BMC) under the Access to Benefit Sharing (ABS) programme. These companies being foreign entities can only be checked by the National Authority but efforts to initiate dialogue between them by the State Board sure welcome appreciation as they bring forth the intention of the State to actively conserve bio-resources and indigenous intellectual property. Furthermore, the Board has entered into 2 ABS agreements with companies from Wardha and Thiruvallar relating to the wonder bacteria of the biotechnology industry, Bacillus Thuringiensis (Bt) found in Mahbubanagar district, for pesticide manufacturing. The prestigious Royal Botanical Garden, Edinburgh has also applied for the plant genetic material from Karimnagar which can rope in foreign capital as well as domestic dividends for the local communities and can be used for achieving developmental goals, though the National Biodiversity Authority reserves the final say in the same as it is an overseas organization. Similarly, the Uttarakhand Biodiversity Board has also entered into an agreement with the cosmetic giant, Habibs, which has already transferred the prescribed amount from profits in lieu of the resources gained from the State to the BMC’s. The Board also seeks to further increase the BMC’s for better sharing of benefits among the local indigenous population and implementation of the provisions of the Act. The Kerala State Biodiversity Board has also undertaken measures to decentralize biodiversity conservation in the state in order to deal with the issues of the local population better and closely monitor any violations of the Act. Efforts are being made to synchronize the activities of the BMC’s with the local panchayats to ensure that concrete efforts are undertaken for biodiversity management and to combat the problem of ineffective and inoperational BMC’s. Thus, there might be incidences of commercial exploitative interests prevailing over biodiversity conservation and management but there also exist contrary cases where the commitment of the State Biodiversity Boards towards the efforts of biodiversity conservation over industrial interests is made apparent.
With State Biodiversity Boards resorting to a more proactive stance relating to the provisions of the Act and their own powers and functions, various judicial proceedings have been initiated countrywide which are symptomatic of coordinated Central-State actions to manage and conserve the biodiversity of the country which is indeed in a pitiable state. The primary case relating to bio-piracy by the internationally renowned giant enterprise of Monsanto’s subsidiary Mahyco, a local agricultural university in Karnataka and a violating company of the Biodiversity Act clearly establishes that Karnataka State Biodiversity Authority means business and will not take to such violations lightly. Senior officials of Mahyco-Monsanto, UAS Dharwad and Sathguru Consultants were accused by the National Biodiversity Authority, or NBA, and the Karnataka State Biodiversity Board, or KSBB, of using seeds of at least six local varieties of eggplant in creating a GM eggplant breed, known as Bt Brinjal, without mandatory approvals required under the Biodiversity Act 2002. With pressures from an MNC of this stature it is indeed commendable that criminal proceedings have been initiated in this case as the company is in clear violation of the law and seek to genetically modify an endemic breed native to the state of Karnataka without even making an effort to seek approval of the designated Board which would never have been granted as it was in clear violation of the Act. The company secretively tried to genetically modify the local breeds and developed a new variety called Bt Brinjal which could pose a significant threat to the native breeds and put them under a threat of extinction. Therefore, the Karnataka High Court’s decision to dismiss pleas to halt criminal proceedings against Monsanto can set a strong precedent and serve as a warning to those doubting the efforts of the Government to conserve the biological diversity of India from the looming threat of commercial exploitation made even graver due to biopiracy. The Madhya Pradesh Biodiversity Board sparred with the Indian subsidiary of the chocolate manufacturer Hershey’son the latter’s failure to respond to multiple violation notices served by the Boards. The failure of the company in obtaining approvals to operate and utilize biological resources of the State for commercial purposes and failure to pay the requisite fee to the BMC’s can be attributed as a reason for initiation of judicial proceedings against the same. This sends out a clear message that a strict adherence to the Act is expected and any violations whatsoever would be dealt with firmly. The State has also implemented provisions for levying and profit sharing with regards to soya bean oil extracting companies whereby it makes it mandatory for the companies to register themselves with the State Biodiversity Authority and share two percent of the profits for environmental protection. It is in fact the first State to implement this provision. The Goa State Biodiversity Board has also actively been involved upholding the interests of the local communities with regard to the conservation of biodiversity. The case of reclamation of the Colva Lake fields was ceased on obtaining an inspection report by the officials of the Biodiversity Board as well as other administrative departments when it was observed that the reclamation would result in interference with hydro-dynamics as well as loss of habitat of seasonal biodiversity. Following the report, the Goa State Biodiversity Board said that “until such time that the biodiversity of the area is not documented across the seasons, no decisions to reclaim the area is to be taken at any level. The board further clarified that “a seasonal inventory of flora and fauna of the site must be carried out before any decision of reclamation is arrived at to rule out the possibilities of any species with conservation concern occurring here”. The stated instances point out to the activities undertaken by the State Boards within their powers to conserve and manage biodiversity in their respective states under Section 24(2) of the Act and how instances of violations must be dealt with judicial sanctions so as to adequately address the concerns of the local population in terms of benefit sharing, protection of their immediate environment along with sending out clear messages to industrial and commercial interests that violations will be strictly dealt with and the rules and regulations must be adhered to in order to continue with the usage and utilization of bio-resources of the State.
INDIGENOUS POPULATION AND THE STATE BIODIVERSITY BOARDS
The indigenous population of the Indian landscape possesses vast reserves of traditional knowledge related to herbs, seeds, horticulture and the much in demand Ayurveda medicine. These populations exist mostly away from the hustle of the much aware urban populations and are unaware of the coveted intellectual property they possess in the form of traditional knowledge and it also seems highly unlikely that they would be acquainted with laws relating to the same. Hence, the Biodiversity Act, 2002 provides an exemption to such local populations and indigenous communities so as to enable them to sustain themselves through biological resources which are a source of their meager livelihood. The commercial aspect of the same can in no circumstances be equated with the exploitative nature of the urban companies or organizations. Section 7 of the Act clearly exempts such people in the nature of small time cultivators or growers and traditional medicine practitioners such as vaids and hakims. The services of these people are much needed in local communities and their vast traditional knowledge is much appreciated, be it related with agricultural practices or medicine. They are not obliged to inform State Boards upon usage of biological resources for they pose no harm to the biodiversity of the State. Also these communities must be consulted by the State Biodiversity Boards after they have been intimated of the commercial activities that are to be undertaken, the “Access to Benefit Sharing” agreements which are now entered into between the State Governments and corporate and industrial stakeholders as has already been stated before are for providing these communities with a safety net and making them beneficiaries of the economic dividends that have been obtained through the natural and biological resources on which they had a primary stake. It is only fair that these people be given their due share. To make them actively involved and become stakeholders with profit the Biodiversity Management Committees require their active participation and are given a direct share in the profits accrued by the commercial and industrial stakeholders so as to enable them to reap the benefits of economic growth which have been brought about with their cooperation. Thereby, the State Biodiversity Boards not only provide them exemptions but must also consult them, the latter part of Section 24(2) clearly stating that an adequate opportunity must be provided to those getting affected to be heard and only then can the Board reach a final decision acceptable to all the stakeholders. Thus, the Act provides for an involvement of and consultation with all the stakeholders.
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