17/08/2019 - Environment | Mainstorming

IAS Parliament 5 years

KEY POINTS

· One key component of the Act is to devise ways and means to seek benefits from the commercial utilisation of biological resources and the associated traditional knowledge pertaining to the use of such resources.

· However, the interpretation of these Guidelines during implementation has been severely problematic. This has resulted in a large number of litigations before the courts, including the National Green Tribunal.

Some key concerns the revised Guidelines need to address

· Though the guidelines speak about benefit sharing, they focus only on ‘securing benefits’ and are completely silent on ‘sharing’.

· This can be legally challenged, since there has been no proof available in the history of the implementation of this Act discussing whether the benefits accrued have ever been shared with the benefit-claimers, which include local communities.

· That benefit sharing has to be negotiated between parties, especially the benefit claimants and resource-users, is clearly ignored throughout the revised Guidelines.

· The pre-determination of the percentages of profits to be shared also goes against the very spirit of the Act and the Nagoya Protocol.

· In addition, there is no rationale provided to how the percentage of the annual ex-gross factory sale to be allocated for benefit sharing has been reached.

· For long, there has been confusion on whether or not the State Biodiversity Boards (SBBs) have powers to levy ABS.

· Some SBBs have used such powers to negotiate benefits. The revised Guidelines clearly note that it is the National Biodiversity Authority (NBA) that has the power to determine benefits. This will pose a legal challenge, given the decentralised power-play envisaged in the Act and the Rules.

· The role of the Biodiversity Management Committees (BMCs) has also been completely ignored throughout the Guidelines.

· One of the most significant revisions brought about is on the exemptions provided to traders of bioresources, small-scale industries with low turnover and start-ups from paying any kind of benefits.

· From a legal perspective, the Act itself makes no distinction between the different types of commercial entities and mere guidelines cannot make this differentiation.

· The revised Guidelines further seek to clarify the activities which are exempted from the application of the ABS provisions. However, before doing this, it is important that there is a clear-cut definition of what entails commercial utilisation and who the benefit claimants are. This has not been done so far.

· While it is clear that the Act, its associated Rules and the ABS Guidelines hold great potential for the country’s economic growth through sustainable commercialisation of bioresources and associated knowledge, the same cannot be realised unless there is all-round clarity on the provisions so as to avoid legal challenges in the future.