Articles by Dr. Shiva

The Draft Biological Diversity Legislation
An anti-National, anti-People Law

The Biological Diversity Act is aimed to implement the Convention on Biological Diversity. The Convention on Biological Divesity (CBD) is an international treaty devised for the protection of biodiversity, guaranteeing to individual states sovereign rights over biodiversity and the patterns of its utilisation. The state thus regulates access to their genetic resources and can deny it if it appears harmful to its national interests. In the preamble, it recognises that traditional knowledge, innovations and practices are of importance to the conservation of biological diversity and that indigenous and local communuties have a close and traditional dependence on biological resources. Their livelihood and lifestyles often depend upon it and are shaped by it.

The principle in which the Convention is based is sovereignty. The objectives of the Convention are

* Conservation of biological diversity
* Sustainable utilisation of biological diversity
* Fair and equitable sharing of benefits

The two most important articles in the CBD from the point of view of India and biodiversity dependent communities are Article 3 and Article 8(j). Article 3 recognises the sovereign rights states have in accordance with the Charter of the United Nations..

to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Article 8(j) recognises that states will :

subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovation and practices.

The Convention acknowledges the role of local farmers and gtribals in biodiversity conservation, and obliges states to provide avenues for the protection of farmers’ rights and national rights to biodiversity, and indigenous knowledge. Furthermore, it exhorts states to protect and encourage customary use of biological resources in accordance with cultural and traditional practices that are compatible with conservation or sustainable use requirements.

A draft biodiversity legislation was prepared by the Ministry of Environment through a major and extended consultative process which centred on the sovereignty over biological resources, the protection of indigenous knowledge in accordance with Article 3 and Article 8(j) of the Convention. It also focussed on articles to ensure sustainable utilisation and prevention of activities that posed a threat to biodiversity.

However, the ministry has brushed aside the draft prepared over 5 years and is finalising a new draft which ignores most obligations under CBD except the clauses requiring access to biodiversity to members of other countries without the preventive condition that such access must be based on protection of rights holders to indigenous biodiversity. The new draft has no clauses which implement article 3 on sovereignty and Article 8(j) on protection of indigenous innovation embodied in biodiversity and indigenous cultures. Without these two principles as the foundation of a biodiversity legislation, the Biodiversity Act will become a mechanism for the state preventing local communities from having free-access to the resources which are theirs, which they have protected and on which they depend on for survival. The draft legislation threatens to block access to local communities in the name of conservation just like the colonial forest laws a century ago while making forest resources available to commercial interests. Forest legislation took away forest resources from village communities and excluded the original owners from access to forests, while facilitating timber trade.

The Draft Biodiversity legislation threatens to repeat the mistakes of the Forest laws by alienating the resources from local communities, and facilitating their transfer to global commercial interests through bioprospecting.

Sovereignty Subverted

Any Biodiversity legislation which is aimed at implementing the Convention needs to have a principle of sovereignty as a starting point and as a working principle.

The national law needs to implement this sovereignty clause. While so far sovereign control over natural resources was usually interpreted as state control, under the new political climate of decentralisation through the 73rd Amendment of the Constitution as well as liberalisation, it becomes necessary to define biodiversity property rights through the sovereign rights of local communities and traditional practitioners, working in partnership with states to regulate external access to these resources, while being free of state interference in their internal use and management systems.

These sovereign biodiversity property rights, embodying both biological and intellectual heritage have to be formalised and protected as existing prior to intellectual property rights. The latter can exist only where they do not infringe on the former, otherwise it becomes an infringement and violation of sovereignty.

In a draft prepared by us ownership of biodiversity needs to be based on a combination of rights and responsibility and a co-ownership of the state and local communities.

The earlier draft which was prepared by Ministry of Environment and Forests had such a principle (Article 3) which was amended during the National Consultation to include the ownership of local communities.

However, the new draft has no article legally establishing the people’s or the state’s ownership to biodiversity.

Protecting the Powers of bureaucrats and scientists, not the people.

The Draft Biological Diversity Act should however be called a Biodiversity Bureaucracy Act. 6 of the 9 pages of the draft provide details about how to set up a Biodiversity Bureaucracy who will be appointed to it and how salaries will be paid to members of Biodiversity Authorities at national and state level. It is totally silent on how the rapid erosion of biodiversity will be arrested and reversed or how biopiracy will be prevented by recognition of indigenous innovation and the rights of local communities.

The draft legislation has detailed clauses on establishing a new bureaucracy and on the rights of scientists, but no clauses related to the rights of local communities either in the context of their utilisation or their innovation and knowledge. People and their biodiversity rights are totally missing in the legislation, even though the primary objective of Biodiversity legislation is to protect biodiversity and people’s rights to use it sustainably.

India does not need an Act to empower a Biodiversity Bureaucracy. It needs legislation to protect the rights of the Indian people to conserve and sustainably use their biodiversity.

Conservation and Sustainable Use of Biological Diversity

The draft Biological Diversity Legislation makes no reference to conservation and Sustainable Use of Biological Diversity even though this is the main objective of CBD and Article 6,8,9,10,11,14 and 19 of CBD specifically translate conservation and sustainable use into actions and obligation.

The new draft merely has an article 20 which has the potential of alienating biodiversity from local communities who use them sustainably.

Article 20 states,

Without prejudice to any other law for the time being in force State Government may from time to time in consultation with the local bodies notify areas of biodiversity importance as Biological Diversity Heritage Sites under the Act. The State Government in consultation with the Central Government may frame rules for the management and conservation of all the Heritage Sites.

This article will repeat the errors and destruction of the forest laws and the national parks.

Ironically, Article 8(j) the CBD is aimed at protecting precisely those communities which will be alienated of their resource rights by Article 20 of the Indian draft. Nothing in the draft legislation refers to the need to protect traditional communities, their lifestyles and their resources as required under 8(j).

There is no legal protection in the draft act of the rights of traditional users, and local people to the use of biological resources and to their knowledge.

Community rights replaced with bureaucratic arbitrariness

A brief article 18 on Benefit Sharing in the new draft merely states,

The National Authority shall in recognition of the contribution made by conservers of biological resources, creators and holders of knowledge and information relating to the use of biological resource allocate to such persons, such sum of money as it may deem fit.

The article on benefit sharing works against people and local communities in 3 ways.

* It replaces communities with "such persons",
* It replaces community rights to use biodiversity and draw benefits from the use of their knowledge with "such sum of money",
* It substitutes people’s rights with decisions which an Authority "may deem fit", thus replacing legal rights with bureaucratic arbitrariness.

Community rights are sacrosanct because the Preamble of the Indian Constitution speaks of `We, the People of India’ individually and collectively. Art. 38 of the Indian Constitution speaks of the social order and not of individual rights, and imposes on the state `the bounden duty to guarantee the preservation of a social order that is just’.

Further, Art. 51(a) of the Constitution states,

It shall be the duty of every citizen of India to value, cherish and preserve the rich heritage of our composite culture.

These community rights are also recognised in the Provisions of the Panchayats (Extension to the Scheduled areas) Act 1996. Section 4 (a) states that:

a state legislation on the panchayats that may be made, shall be in consonance with the customary law, social, and religious practices and traditional management practices of community resources.

The draft Biodiversity law thus works both against the constitution and against the Panchayat Act for Scheduled Areas. It also works against the ILO Convention on Indigenous Rights. As early as the 1950s the ILO passed a convention acknowledging collective ownership rights of traditional occupants, long before many states acknowledged such rights for their own people.

Article II of the ILO Convention 107 on Indigenous and Tribal Populations (1957) provides:

The rights of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.

The Convention acknowledges the role of local farmers and tribals in bio-conservation and obliges states to provide avenues for the protection of farmers’ and national rights to biodiversity, and indigenous knowledge. Furthermore, it exhorts states to protect and encourage customary use of biological resources in accordance with cultural and traditional practices that are compatible with conservation or sustainable use requirements.

Benefit sharing arrangements need to ensure the implementation of article 8(j). They need to recognise communities, and hence need to ensure that benefits flow to these communities as rights, not merely as benefits granted by an Authority.

The second major flaw in Article 18 of the new on benefit sharing is the failure to recognise that indigenous innovation is collective, and hence rights associated with it accrue to communities, not individuals. The language of "such persons" reinforces the legal framework of individual rights that the U.S. has been pushing in international negotiations, and prevents the emergence of a formal recognition of the rights of communities.

A major flaw in the benefit sharing clause is that it fails to create law that would make it an obligation on the part of commercial users, both national and global, to share benefits of commercialisation through royalties fixed on use of biodiversity as well as knowledge. All these failures emerge from the lack of an article in the proposed national legislation to implement Article 8(j) of the Convention related to indigenous knowledge.

The draft Biodiversity legislation is not a positive and enabling legislation that will promote conservation or sustainability as envisaged in the Convention on Biological Diversity.

People’s Rights, Indigenous Knowledge and Intellectual Property Rights

The primary value of CBD is that by recognising indigenous knowledge and indigenous innovation it creates a legal instrument for preventing biopiracy by establishing prior art and by allowing countries to create alternatives to IPR regimes for the recognition of indigenous knowledge and indigenous innovation.

However, there is no implementation of Art. 8(j) in the draft legislation. Not only is there a failure to recognise indigenous knowledge and rights associated with it, there is in fact a full support for IPRs based on prospecting of indigenous biodiversity and indigenous knowledge.

Article 19 on Prior intimation regarding Commercial Application states,

i) No person shall apply for any form of intellectual property protection in India or abroad based on research or information gathered from any source on a biological resource occurring in the wild, cultivated or domesticated without giving prior intimation in prescribed form to the National Authority.

ii) On securing any intellectual property protection, the Indian or foreign applicant shall, within sixty days, give intimation in prescribed form to the National Authority who may impose a benefit sharing fee or royalty on the financial benefits to be made out of the commercial utilisation of the patent or protection.

There are three major problems with this article.

Firstly, it fails to establish the intellectual rights of communities associated with indigenous innovation. It, therefore, allows IPRs in domains in which IPRs should be excluded because of prior art in the form of indigenous knowledge. The recognition of indigenous innovations would make royalty payments a right. In the present draft this is left to the arbitrary decisions of the National Authority "who may impose a benefit sharing fee".

A right has thus been extinguished, and IPR regimes which allow biopiracy have been reinforced. The challenge of the Biodiversity legislation is to assert and protect the rights of our people, not to reinforce the TRIPs agreement of WTO. As India’s paper to WTO has recognised(WT/CTE/W/65)the CBD and TRIPs have opposing obligations and TRIPs needs to be revised to be consistant with CBD. Since TRIPs will be reviewed in 1999, India’s stand in WTO is critical. The draft act undermines our negotiating position in WTO demanding a change in TRIPs.

CBD allows us to evolve legal frameworks to protect our indigenous knowledge and to demand royalties for its use as a right. This is the principle that needs to be written into any law related to Biodiversity.

We have proposed a text for the protection of indigenous knowledge and the prevention of infringement of traditional rights.

The framework laws for the implementation of the Biodiversity Conservation and the sui generis option for plants in TRIPs can converge in a legal framework appropriate to the domain of biodiversity and indigenous knowledge and therefore adequate for the objective of protecting our biological and intellectual heritage.

A framework law that has no sovereignty clause is giving up the most potent element in the CBD to assert national and community ownership over biodiversity and draw benefits as a result of that ownership.

Article 3, 8(j) and 19.3 are the most potent instruments evolved by the CBD to protect life’s diversity, to protects the interests of the South and to protect the rights of the poor. The failure of the draft Biodiversity law to fully utilise this potential of the CBD will translate into an erosion of sovereignty, an erosion of people’s rights and knowledge, and an erosion of biodiversity. The legislation needs to be redrafted as a creative and positive implementation of the CBD ensuring that Articles 3, 8(j) and Articles 6,8,9,10,11,14 and 19 on conservation and sustainable use appear as elements of the national legislation. In its present form, it is a weak, mutilated and bureaucratic implementation of an international treaty that has tremendous transformative potential economically and politically and is the only international legal instrument that can act as countervailing force to the TRIPs agreement of W.T.O. and to the free trade puggernant that is being wiping out cultural and biological diversity.

While undermining the people’s right to biodiversity and to their knowledge, the draft Biodiversity legislation is basically aimed at providing easy and smooth access to foreign companies and scientists. In fact, while there is not a single line in the framework act about the rights of local communities to local biological resources and to indigenous knowledge, the chapter works out in great detail the processes to guarantee access of foreign corporations to the biodiversity. The legislation is therefore an access law for foreigners and has the potential to become a denial of access law for the Indian people, especially tribal and rural communities.

This draft is not a Biodiversity Conservation legislation. It is a Biopiracy facilitating legislation. It will facilitate global trade in our biodiversity while local people are denied access to local biodiversity -- medicinal plants, wild foods, fodder and fibre -- that they need for their survival.

For five years, nationally and internationally those of us involved in contributing to shaping the future of CBD have seen CBD as a countervailing force to GATT. However, the national biodiversity legislation does not limit the potential excesses of TRIPs, by strengthening people’s rights to biodiversity and knowledge. It is in fact a fast forward implementation of TRIPs in the area of life form.

It is a GATT for genes.