THE CHICKPEA SCANDAL: TRUST OR CONSEQUENCES?

March 1998

THE CHICKPEA SCANDAL: TRUST OR CONSEQUENCES?

At first, it was a storm in a tea cup beginning with a less-than diplomatic exchange between an Australian delegate and a RAFI observer to the December 1997 session of the FAO (United Nations Food and Agriculture Organization) Commission on Genetic Resources for Food and Agriculture (CGRFA). The fuss arose over Australia's intellectual property claims on two chickpeas. RAFI contended that the varieties were from the International Centre for Research in Semi-Arid Tropics (ICRISAT - Hyderabad, India) - not from Australia. A roomful of governments looked on uncomfortably. By February, however, the dispute had led to CGIAR (Consultative Group on International Agricultural Research) Chair, Ismail Serageldin, calling for a moratorium on all intellectual property claims involving any CGIAR-stored germplasm under FAO Trust (see Box). FAO’s Assistant Director-General, Henri Carsalade, complemented the move by proposing a joint FAO/CGIAR task-force to investigate all Trust abuses - real or imagined - with a mandate to report to an extraordinary session of the FAO Commission (Rome, June 8-12).

Between December and February, the dispute spread from the ownership of two humble chickpeas to the immorality and inherent injustice of Plant Breeders’ Rights and patent monopolies. Working together, RAFI and the Australian organisation, Heritage Seed Curators’ Association (HSCA) soon discovered dozens of suspect Plant Breeders’ Rights (PBR) claims. Stunned by what they were uncovering, the teams began an intense search through the Internet and patent journals - not just in Australia, but around the world. By mid-March, more than 100 plant accessions originating in at least 30 countries appeared to have been improperly appropiated by public and private breeders in half a dozen countries. On RAFI’s suspect list are at least 16 accessions provided by six International Agricultural Research Centres (IARCs).

Chickpea Trail: RAFI first suspected a problem when it came across brochures of Western Australian agencies advertising Heera and Sona chickpeas which were said to have come from ICRISAT. The Australians made no pretence of having bred the material but they did announce that PBR certificates were pending. Checking with ICRISAT, RAFI confirmed that one of the two chickpeas was under FAO Trust and that a Material Transfer Agreement signed by the Australians and ICRISAT prevented PBR for either variety. The Western Australians actually withheld that they were proceeding with PBR claims and had in fact already licensed the varieties. ICRISAT demanded that the Western Australians drop the two claims. This they did, reluctantly.

The search, almost inadvertently, turned up a number of ‘questionable’ lentil claims on material from ICARDA (International Centre for Agricultural Research in Dry Areas, Aleppo, Syria). Once again, there is no evidence of breeding by the Australians, and some of the lentils are part of FAO Trust arrangements. RAFI notified all the parties involved - including FAO and CGIAR - and suggested that the widening scope of Trust abuses necessitated the call for a voluntary moratorium.

The circle of questionable ownership keeps widening. Among the varieties under PBR claim in Australia is an Ecuadorian faba bean sent by ICARDA and now awaiting a second PBR certificate in South Africa. The literature gives no evidence of breeding activity. The original germplasm is already available to South Africa's farmers for free. A survey of the Australian and New Zealand journals suggests that breeders feel that a visa and a plane ticket are surrogates for inventiveness.

‘It can't happen here’: A few months ago, UPOV (Union for the Protection of New Varieties of Plants, Geneva) and commercial breeders would have insisted that the RAFI/HSCA roster was an impossibility. Indeed, when Australia was revamping its PBR legislation in 1994 to conform with UPOV's stringent 1991 Convention, Bill Hankin, President of HSCA, warned that the legislation was an invitation to biopiracy. In a letter dated November 18th, 1994, Australia's then Minister of Primary Industries, Bob Collins, flatly denied the charge insisting both that the PBR Office would not allow it, and that breeders would not be interested in Farmers’ Varieties from the Third World. Nobody in Australia is repeating that boast today. Beyond the South Pacific, it is clear that commercial interests from Israel through Italy, Spain, and the United States have all found PBR certificates on Farmers’ Varieties profitable.

Gaps & Gaffes: First is the problem of record-keeping and database linking. There is no single, electronically-accessible list of all the Trust germplasm. Despite good will and the considerable professional expertise of many scientists within the CG System, RAFI has found it difficult to confirm whether or not several Aussie claims are part of the accord. Much of the problem relates to the multi-decade evolution of separate Centre seed identifier codes - but some of it also points to a lack of CG System-wide co-ordination.

Compounding the difficulties of monitoring material is the absence of easily-constructed Internet links between the Trust germplasm, national PBR and seed certification offices, and the Union for the Protection of Plant Varieties (UPOV) own electronic database. The CGIAR is in the midst of building a very sophisticated germplasm and variety pedigree system, but they have yet to merge CGIAR data with UPOV in order to track piracy.

Missing Monitors: But the bigger problem is that neither FAO nor the CGIAR currently has the resources to adequately monitor germplasm flows. This is not a criticism. No one expected the levels of abuse we are now seeing. There are no procedures in place. There are no staff assigned to the monitoring task. If complaints are made, there is no place to go. While much of the work could be done electronically, FAO and CGIAR must come to the Commission meeting in Rome next June with credible proposals for the management of future problems.

Unconventional confusion: The Australian affair has also exposed misunderstandings and policy confusion between and among CGIAR Centres. While ICRISAT moved forcefully to defend its MTAs and the FAO Trust -despite implied threats from Australian agencies that the Centre might be excluded from a gene- mapping initiative - ICRISAT's sister agency, ICARDA, ignored the FAO Trust and agreed to allow the Australians to claim lentils as long as the country of origin agreed. Despite blunt assurances from FAO and CGIAR, ICARDA continues to argue that they are acting in good faith under the terms of the CBD. Most observers - inside and outside the CG, think that the senior ICARDA staff are suffering from wounded egos and are now too embarrassed to withdraw their improper MTAs. Indeed, at least one Australian institute acknowledged the gaffe and offered to drop two lentil claims. It seems that ICARDA doesn't want them to do this. Clearly, the CGIAR has to adopt uniform policies and MTAs. There must also be a mechanism for bringing befuddled Centres into line.

Shell Games: The June Commission will have to address the problem of FAO Trust material duplicated elsewhere. One of Mexico-based CIMMYT's (Centro Internacional para el Mejoramiento de Maiz y Trigo) durum wheats, for example, has been placed under PBR in New Zealand, much to CIMMYT’s surprise. Is the germplasm Trust material? Probably so, but durum wheat is not part of the CIMMYT-FAO Trust. The responsibility for durum rests with ICARDA.

Still more confusing is the IRRI (International Rice Research Institute, Philippines) rice collection duplicated for safekeeping in the United States. Virtually all of the IRRI collection is held in Trust for FAO. Nevertheless, RiceTec Inc. of Texas has access to the US collection and has both patent and PBR claims on a number of accession ‘derivatives’ (see box). In fact, the entire basmati rice collection from IRRI is involved in RiceTec’s intellectual property initiative. If RiceTec is successful, the result could be a major loss in Basmati exports from India and Pakistan to the USA. The solution should be to place all duplicates of FAO Trust material under the same provisions as applied to the original samples.

For some people, the manifest shortcomings of the current FAO Trust Agreement are proof that multilateralism doesn’t work and that ICARDA’s muddled approach is right. The theory is that all pre-Biodiversity Convention germplasm should be surrendered to the country of origin where either farmers or governments should apply for PBR. Then, the story goes, the rights-holder could take the Australians (and others) to court for infringing their intellectual property. Implicit in this scenario is the belief that FAO and CGIAR have plotted to usurp power from the CBD where crop germplasm rightfully belongs. The theory overlooks history and reality. It was the CBD that first demanded (at its last pre-COP meeting in Nairobi in June 1994, and then approved (at its first COP in Nassau in November 1994) the original Trust Agreement including Article 10 prohibiting intellectual property claims. Certainly the CGIAR - but also FAO - felt under strong Convention pressure to reach an agreement.

The overwhelming majority of the world’s agricultural germplasm is out there in the field ‘protected’ by national sovereignty as recognised by the Biodiversity Convention. How many bilateral deals have been signed ensuring any flow of benefits to the South or to farmers? Are there any? How much has been stolen from farm bins since the Convention came into force in 1994? How would anyone know?

Since the Rio Earth Summit, RAFI and other Civil Society Organisations have released information on literally hundreds of cases of biopiracy (usually high-value pharmaceutical plants, soils or animals) involving more than 60 countries and every world region. In most cases, the specific stories were transmitted to the appropriate governments with sufficient information for the authorities to take action. Other than in India and the Solomon Islands, there are almost no instances where governments have acted to defend their national self-interest. In fact, the only examples in the world where the biopiracy of agricultural germplasm is being systematically opposed and PBR claims are being overturned is through the FAO-CGIAR Trust Agreement. The South’s interests have been better defended in the past few months than ever in the history of PBR. In fact, the Trust germplasm lists (though less than perfect) were what made it possible to follow the trail of abuses through the maze of PBR Office claims from country to country. Most importantly, though understaffed and overwhelmed by unanticipated demands, the CGIAR’s System-wide Genetic Resources Programme (SGRP) in Rome undertook much of the leg work once problems became known.

Is it possible to strengthen the Trust Agreement - allocate more funds and staff to improve the databases and monitoring functions - and still call for the repatriation of pre-CBD germplasm? Possibly, but unlikely. Why would the international community service bilateral germplasm transactions, especially those that secure private sector profits? Today’s intergovernmental bodies expect countries and corporations to pay for services out of their profits.

Then, too, there is the awkward question of the vast quantity of CGIAR germplasm without passport data. Dozens of the cases studied by RAFI and HSCA merely suggest that the accession comes from the ‘Mediterranean’, the ‘Indian Subcontinent’, or ‘Latin America’. One Australian gene bank director, caught with unexplainable PBR claims, actually began to undate (the reverse of update) his accessions on the Internet saying that material he once reported to have come from one country was actually of unknown origin after all. How will bilateral approaches help in this case?

Perhaps the central question, however, is whether national governments and or farming communities could or should take the time and money necessary to claim each of their crop accessions. Not only is the cost exorbitant but the potential financial returns are negligible. Of still greater concern is the capacity of countries and communities to defend their claims through litigation. Even if FAO and the CGIAR sometimes look and act like ‘The Gang That Couldn't Shoot Straight’, the Australian scandal makes clear that farmers and single countries need the protection afforded by a strong multilateral Trust Agreement embedded in a legally-binding FAO International Undertaking.

A PBR too Far? Rather than push poor countries and even poorer farmers into the western model of intellectual property monopolies, we should be demanding an investigation of UPOV and of Plant Breeders’ Rights around the world. The recent scandal shows that UPOV’s Convention is predatory legislation legitimising the right of commercial interests to prey upon the knowledge of indigenous and local farming communities. Institutions are able to make claims without undertaking genuine plant breeding and PBR Offices are failing to test claimed varieties against the original germplasm samples. FAO and the CGIAR acted, yet UPOV buried its head still deeper into the sand. Now that there is an External Review of CGIAR going on, it is time for governments to launch an External Review of UPOV and national experiences with PBR legislation. Rather than the US calling for WTO members to adopt patents or UPOV ’91 in TRIPS, the world should be launching a full-scale inquiry into the workings of UPOV since it began in 1961.

It is astonishing that throughout the past months FAO and CGIAR Centres have been accused of almost everything while UPOV has hidden in Geneva. Why is it that UPOV doesn’t monitor inappropriate variety evaluation programmes? How can UPOV allow its new member, South Africa, to pay royalties on varieties it could have obtained for free? Why does UPOV not stop governments giving so-called ‘exclusive licenses’ on varieties they neither breed nor own? Why doesn’t UPOV investigate the piracy of plant varieties from other new member countries like Argentina, Brazil, Colombia, Mexico, and Kenya by misguided institutions in Australia and New Zealand? How can UPOV stand quietly by while enterprises pretend they have bred varieties they have only acquired from CGIAR Centres? Doesn't this damage Plant Breeders’ Rights? Where are UPOV’s databases, monitoring systems and response protocols for the piracy of indigenous knowledge? When the UPOV Council convenes in Geneva for its fleeting show of democracy on October 28th this year, governments, farmers, and breeders should invite the Secretariat to join the real world and accept its responsibility for cleaning up the mess.

Indigenous Rights: The full dimensions of the scandal - even in Australia - are not known even now. Corporate breeders in Australia are saying, for instance, that some applications suggest the possibility of collusion between Australian enterprises and the PBR Office to keep foreign breeders from obtaining certificates ‘down under’. Beyond this, a number of indigenous plant kinds are actually the property of Aboriginal communities in Australia. HSCA and RAFI are working with Aboriginal organizations to sort out the piracies and prepare the way to have the claims abolished. For those who think national PBR laws will protect the rights of farmers, watch what happens within Australia when corporations meet communities in civil court.

For further details, please see RAFI's Internet home page at www.rafi.org and click ‘BioPiracy in Australia’. RAFI may also be contacted at: 110 Osborne St. Suite 202, Winnipeg, Manitoba, R3L 1Y5, Canada. Fax: (1-204) 925-80-34. Email: [email protected]