The biodiversity-keepers and knowledge-holders have first right over local
resources

India is host to mega biological diversity. The Government of India (GoI) is to host a mega gathering of the international convention on this subject – the Convention on Biological Diversity (CBD), in Hyderabad in October this year. It is at the CBD table that the world community attempts agreements on conservation.

While the CBD affirms that conservation of biological diversity is a ‘common concern of humankind’, it makes clear that biological resources are not global common goods! On the contrary it lays down that States have sovereign rights over their biological resources. Thereby sovereign states are meant to have original authority on biological resources in their territorial jurisdiction. Being in a state of sovereignty implies that the state administers its own governance. At the local level it translates into not being dependent upon, or subject to, either another power or external forces.

This sovereignty principle was required to check the use of local resources sans any acknowledgement of the host country's people, or without either taking their permission or sharing benefits with the biodiversity-keepers and knowledge-holders – the indigenous and local communities. That is why the member countries of the CBD also negotiated rules under the Convention for access and benefit-sharing (ABS), which spell out the terms and conditions to legalise the 'give-and-take'.

The sovereignty principle of CBD in no way means that governments or any state agencies can unilaterally take decisions about how local resources and related know-how of them ought to be used. Thus national gene banks, agricultural universities and any biodiversity functionaries have to hold and treat the genetic material in trust on behalf of the people. The Convention was meant to settle any confusion about whom this living genetic matter belongs to. To the people. Yet national laws and policies in many countries, including India, fail to address this very real question.

The Indian Parliament passed a law in 2002 - the Biological Diversity (BD) Act, to give effect to the CBD in domestic space. But it does not make any declaration whatsoever on the legal status of people's resources or their everyday know-how related to the biological world. It ought to have unambiguously spelled out very clearly that the biological resources and related people's knowledge are all a collective heritage. The CBD principle does not in any way give the Parliament or the Executive the power to define the legal status of these resources. Thus lawmakers, government bureaucrats or for that matter even formal scientists are not to define people's relations with biological resources and knowledge, but they have to give due recognition to the pre-existing traditional relations of people's with their local biological world.

The express silence in legal texts and policy statements is giving the public sector to much freeway to do as they please with this treasure. This is misuse of national sovereign power and abuse of representative democracy. Matters are made worse instead by clearly defined legal rules of intellectual property (IP). What IP laws, such as those for patents or plant variety protection (PVP) do, is to clearly define the rights of the IP-holder. Therein again is ambiguity about legal freedoms for the original knowledge-holders. The number of PVP applications before the current PVP Authority in India shows maximum number being filed by the Indian Council of Agricultural Research (ICAR) and agricultural universities under it. (See story: “Protecting Oryza in Odisha” http://www.mylaw.net/Article/Protecting_Oryza_in_Odisha/ ) The PVP-protected varieties become public sector property for the term of the IP. This has also given ICAR the arrogance to treat national collections as their private property. (See story: “India Institute seeks expertise in global seed business” http://online.wsj.com/article/SB10001424052702303360504577411540343437830.html?mod=googlenews_wsj#articleTabs%3Darticle )

The NARES in India races along to fill out such IP claims. The farmers who were the first to invent local varieties, rather than the first to file before the Authority are falling behind. Based on this politics, even the time period within which local small traditional growers can file for such IP protection under the category of 'farmers' varieties' has been restricted for five years (2009-2013). This puts an expiry date on farmers’ creativity! All this also comes in the way of realising people's sovereignty over their living resources.

India is a key country in the CBD. Not only as host, but also a country that has the capacity to give global leadership on these contentious issues on the strength of the bio-cultural ethos of its people. The GoI has also been a strong voice at the CBD fora asking for a legally binding international regime on access and benefit-sharing. The doublespeak is that in its national law – the BD Act, it merely asks for consultation with 'benefit claimers'. The BD Act does not ask for the full prior informed consent (PIC) of India's people. The experience in the last eight years of the Act, since the Rules (2004) were notified is that the procedures for even just consultation are rarely followed. The oft mentioned case in this context of an Indian agricultural university passing on genetic material to a US MNC for the development of genetically engineered brinjal, without any due procedure or consultation, elaborates the point. In this way at home the regulatory regime is not fully complying with the CBD that the GoI so loudly defends outside.

Last year in Asia the Republic of Philippines made a first. On 25th May 2011, by a Proclamation No.78, the President of the Philippines declared the years 2011 to 2020 as the National Decade on Biodiversity in the Philippines. President Benigno S. Aquino III saw the opportunity to increase awareness of the importance of biodiversity and promote actions at the national, provincial, and local levels to conserve and sustainably manage the nation’s rich natural heritage. By the Proclamation “(a)ll branches and agencies of the Government, including, but not limited to, commissions, national government agencies, local government units, state universities and colleges, government-owned and-controlled corporations, in cooperation with the private sectors of society, community organisations, and non-government organisations, are hereby enjoined to initiate activities to promote the Biodiversity Decade”. Philippines is already a country remembered as the first amongst biodiversity-rich 'developing' countries to issue a bioprospecting and benefit-sharing regulation – the Executive Order 247. That order issued in May 1995 expressly mentioned that “wildlife, flora and fauna, among others, are owned by the State”.

The term 'state' implies the whole body of people who are united under one government, whatever be the form of their government. In other words biological diversity is a collective national heritage. It follows that neither can the government begin to stake its claims on it (just as the NARES in India is doing by seeking plant variety registration over crop varieties developed by public sector breeders), nor can laws of private property and commercial interest (such as patent legislation that permit corporations to in effect own genes and living material).

In another South Asian country – Bangladesh, the draft Biodiversity and Community Knowledge Protection Act, in Article 6 articulates the CBD principle of sovereign rights over biological resources to mean belonging in perpetuity to the people of Bangladesh and held for past, present and future members of the country. That is why perhaps the Act stays as a draft! The ASEAN Framework Agreement was designed to require not only the active involvement of local communities but also insisted respect for their customary laws, practices and protocols. In Costa Rica, while the domestic law describes the content of the PIC. It also requires full discussions with the local indigenous communities prior to any access. When in Brazil there was a proposal for a constitutional amendment to make all genetic resources part of the national and cultural heritage, peoples raised their voice to have that clearly subject to their claims. For governments often hide behind rhetoric of national heritage to do as they please in supposed 'public interest'. For people the state of being sovereign has to be constantly negotiated, struggled for and practiced everyday.

The President is the Head of State of the Republic of India. Executive power of the Union is vested in the President. It implies that the President's office has all the powers of the Central Government. Therefore, if and when the GoI is not clearing the air on these vital matters, the Head of the State ought to step in. While one part of GoI takes centre-stage on biodiversity and organises celebrations on World Biodiversity Day (22nd May), outside the hall its other functionaries can not be allowed to hold an exhibition-cum-sale of those very resources. The curtain has to fall on this. It is therefore only fitting that a clearly worded declaration of Indian people's sovereignty over their biological resources, come from that high office. That would be a fitting finale by Her Excellency the President of India to these debates. The nation, rather the nation's people, needs closure to this high drama by due recognition of people's biodiversity sovereignty.