Draft law on access and community rights

Pakistan (2004, draft)

Date not known

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LEGISLATION ON ACCESS TO BIOLOGICAL RESOURCES AND COMMUNITY RIGHTS [DRAFT]

(no date)

Government of Pakistan
Ministry of Food, Agriculture & Livestock
Pakistan Agricultural Research Council

• Whereas, it is necessary to protect and encourage cultural diversity, valuing the knowledge, innovations and practices of the local communities with respect to the conservation, management and use of biological resources.
• Whereas, the Government of Pakistan together with the civil society exercises sovereign rights over the biological resources existing in the national territory.
• Whereas, it is the duty of the state and its citizens to regulate the access to biological resources as well as related use of community knowledge and technologies.
• Whereas, the state recognizes the necessity of providing adequate mechanisms which guarantee a just, equitable and effective participation of it citizens in the protection of their collective and individual rights and in making decisions which affect the biological and intellectual resources as well as the activities and benefits derived from their utilization.
• Whereas, there is a need to promote and support the traditional and indigenous technologies that are important in the conservation and sustainable use of biological resources and to complement them by modern technologies.
• Whereas, there is the need to implement the relevant provisions of the Convention on Biological Diversity, in particular Article 15 on access to generic resources and Article 8(j) on the preservation and maintenance of knowledge, innovations and practices of indigenous and local communities.

Now, therefore, it is hereby legislated as follows:

Article 1: Definition
Access to biological resources and community right means acquisition of state biological resources and its related use/knowledge and technologies either by direct or indirect mean for research or commercial use.

Article 2: Objectives
The objectives of this legislation shall be to:
a) Project and support the rights of local communities over biological resources and their knowledge, innovations and practices with respect to the conservation and use of biological resources.
b) Ensure the conservation and sustainable use of biological resources and [related] knowledge and technologies in order to maintain and improve their diversity as a means of sustaining the support and health care system of the country.
c) Provide an appropriate system of access to biological resources and [related] knowledge and technologies based upon mutually agreed terms and subject to the prior informed consent of the State and the concerned local communities.
d) Promote appropriate mechanisms for a fair and equitable sharing of benefits arising from the use of biological resources and [related] knowledge and technologies as well as ensuring the participation and agreement of concerned communities in making decisions as regards the distribution of benefits which may derive from such uses.
e) Promote and encourage the building of national scientific and technological capacity relevant to the conservation and sustainable utilization of biological resources;
f) Provide appropriate institutional mechanisms for the effective implementation and enforcement of community rights and conditions of access to biological resources.

Article 3: Scope
1. This legislation applies to biological resources and [related] knowledge and technologies as well as their derivatives existing in the national jurisdiction of the country both in-situ and ex-situ.
2. This legislation shall not apply to the traditional use and exchange of biological resources as well as [related] knowledge and technologies carried out by the and between local communities based upon their customary practices.

Article 4: Access to Biological Resources and related Community knowledge and technologies.
1. Research and development on biological resources shall be carried out within the country, unless found impossible to do so. When there are competitive requests for access to biological resources, priority shall be given to the collector who undertakes to conduct the research and development within the country.
2. Access to biological resources shell be based upon mutually agreed terms and subject to the prior informed consent of the State, competent authority. The requirements and conditions set out are as below:
a) The Collector shall request the competent national authority for access to biological resources by application in writing that contains information inter- alias.
i.) The identification of the applicant and the documents which testify to his legal capacity to contract;
ii.) Detailed and specific information about the resources to which access is sought, including its present and potential uses, its sustainability and the risks which may arise from access;
iii.) Whether any collection of the biological resources endangers any component of biological diversity;
iv.) The purpose for which access to the resource is requested including, where appropriate, the type and extent of commercial use expected to be derived from the resources;
v.) Description of the manner and extent of intended involvement of the country in the necessary research and development of the biological resources concerned;
vi.) The identification or request for the assignment of the national scientific counterpart institution which will participate in the research and be in - charge of monitoring the process;
vii.) The precise sites where the resources is located as well as the places where the proposed research and development activities will be carried out.
viii.) An indication of the primary destination of the resources and its probable subsequent destination;
ix.) An indication of the benefits, whether economic, technical, biotechnological, scientific, environmental, social or otherwise, that may derive to the country and the concerned local communities and proposed mechanisms of arrangements for benefit sharing;
x.) Description of the knowledge, innovation of practice associated with the resources, if any,
xi.) Presentation of an environmental impact assessment where it is required;
xii.) Any other information deemed relevant by the competent authority.
b) Once the application is complete, the competent national authority shall place it in a public registry for a period of three months which may be consulted by any person.
c) Upon determination that the application has fulfilled all the necessary requirements of the present legislation and subsequent regulations issued for its effective implementation, the competent national authority shall approve the grant of access to the material requested with or without conditions.
2. The competent national authority shall grant permission after the signing of an agreement with the collector. The agreement shall contain the following minimum requirements:
a) a limit on the sizes of the samples that the collector may obtain and / or export;
b) guarantee of a deposit of duplicates of all specimens collected with a duly designated government Institution;
c) a commitment by the collector to inform the competent authority and, where appropriate, the concerned local community of all finding from the research and development on the resource material, if a commercial use is derived from such activity;
d) a commitment by the collector not to transfer the acquired resources to any other party without the authorization of the competent national authority;
e) provision for the payment of [loyalties] [a fixed sum of money] to the national government or local communities, in case commercial use is derived form the biological resources taken. Where appropriate and applicable, other forms of additional benefits may be negotiated;
f) submission of a regular status report of research and development on the resources concerned an where [appropriate] [specimen of biological resources are to be collected in large quantities], on the ecological state of the area to the competent national authority; and
g) commitment to abide by the relevant rules of the country particularly those regarding sanitary control, bio-safety and the protection of the environmental as well as the cultural practices, traditional values and customs of the local communities.
3. No import or export of any biological resources shall be allowed to and from the country unless the competent national authority confirms that a prior informed consent has been obtained from the country of origin.
4. The competent national authority may unilaterally withdraw its consent and terminate the agreement and / or further use of the biological resources concerned whenever it has become apparent that the collector has violated any of the mutually agreed terms, or the overriding public interest so demands.
5. The competent national authority shall ensure that a guarantee has been obtained from the State in whose jurisdiction the collector operates regarding the latter’s compliance with the mutually agreed terms and conditions of access to the biological resources.
6. Any claims upon biological resources obtained or used in violation of the provisions of this legislation of mutually agreed terms and conditions shall not be recognized and the certificate of intellectual property or similar certificates and license upon such resources or products and processes resulting form access shall not be considered valid.
7. The competent national authority may, when it deems it necessary, establish restrictions or prohibitions on those activities which are directly or indirectly related to access to or introduction of biological resources, particularly in case of:
a) endangered taxa;
b) endemism ;
c) adverse effects upon human health or upon the quality of life or the cultural values of the local communities;
d) environmental impacts which are undesirable or difficult to control;
e) danger of genetic erosion or loss of ecosystems, their resource or their components, because of undue or uncontrolled collection of germplasm;
f) non-compliance with rules on bio- safety or food’s security; and
g) use of resources for purposes contrary to national interest and to relevant international agreements entered into by the country.

Article 5: Community Rights
1. The State shall recognize and protect the rights of the local communities to collective benefit from their knowledge, innovations and practices acquired through generations (past, present and future) and to receive compensation for the conservation of biological resources in accordance with the provisions of this legislation and subsequent regulations.
2. The local communities shall as all times and in perpetuity be the lawful and sole custodians [as well as generators] of the relevant knowledge, innovations and practices.
3. No such knowledge, innovations or practices shall be sold, assigned, transferred or dealt with in any manner without the prior informed consent of the local communities concerned and national competent authority.
4. The State shall ensure that at least 10 percent of benefit obtained from any commercial use of biological resources are paid to the concerned local communities.
5. Subject to the above paragraphs of this Article, the State shall taken regulatory measures to establish and implement a system of collective/community [intellectual][achievements] rights through a process of consultation with and participation of the local communities. Such measures shall include:
a) the identification of the types collective [intellectual] [achievements] rights that are recognized in each case;
b) the identification and definition of the requirement and procedure necessary for the recognition of the collective [intellectual] [achievement] rights and the title to same;
c) definition of a system of collective registration and specific rights and obligations that arise form the entitlement;
d) criteria and mechanisms for the standardization of procedure; and
e) licenses for the exploitation and commercialization of the protected species,
varieties .
6. The State shall identify, in consultation with local communities, technical institutions to assist them to identify and characterize their innovations.
7. The State shall ensure that local communities have the right not to allow the collection of biological resources and access to their traditional technologies, knowledge, innovations and practices, as well as to den and restrictions upon such activities when it is provided that such activities threaten the integrity of their natural or cultural patrimony.

Article 6: Institutional Arrangements
1. A national inter-sectoral coordination body at the highest level, composed of relevant representatives form the public sector, scientific and professional organizations, NGOs and representatives of local communities, shall be created as a regulatory body to ensure the proper implementation and enforcement of the provisions of this legislation.
2. A technical secretariat (advisory body) which shall equally be inter-sectoral and composed of representatives of the public sector, research institutes and centers, the academic sector, authorities or community organization is and NGOs shall be created to support the work of the national inter-sectoral coordination body.
3. The national inter-sector coordination body shall have, inter-alia, the following functions:
a) ensure that the minimum conditions for agreements with collectors is strictly observed and complied with;
b) ensure that the rights of local communities whereas the collection of or research on biological resources are being conducted are protected, including verifying that the requirement of prior informed consent by the local communities are complied with;
c) study and recommend policies and laws on the sustainable use of biological resources including new laws or intellectual property rights and community rights over their knowledge innovations and practices [relevant to the conservation and sustainable use of biological resources];
d) recommend policies and mechanisms for coordination between the entities competent in matters of biodiversity and bio-safety;
e) establish, together with relevant sectoral agencies, local communities, scientific and non-governmental organizations, list of genetic resources threatened by extinction and deterioration, and the places threatened by serious loss of biological diversity;
f) issue and update every three years, a report on threats to the national biodiversity and about the potential impacts of its deterioration upon sustainable development;
g) establish a mechanism to enable the identification and dissemination of information regarding threats to biological and genetic diversity; and
h) perform such other functions as may be necessary to implement this legislation.

Article 7: Establishment of a National Information System
The State shall establish a National Information System with regard to biological resources which include the following aspects:
a) the creation of facilities required to maintain and up-to-date system of information about the research and development activities on the biological resources of the country, and
b) measures towards the repatriation of information on the country’s traditional knowledge and technologies [related with biological diversity].

Article 8: Funding
The funds required to undertake activities towards implementing the provisions of this legislation shall be obtained through [budgetary allocation] [the establishment of a nationaltrust funds] for which resources may include:
a) allocation of state budget;
b) a portion of the benefits shared by appropriate and concerned sectoral departments;
c) incomes and fees imposed on access agreements; and
d) any other source of funds be identified.

Article 9: Appeals
Decisions on approval, disapproval or cancellation of agreements regarding access to biological resources may be appealed through appropriate administrative channels.

Article 10: Sanctions and Penalties
Without prejudice to the exercise of civil and penal actions which may arise from violations of the provisions of this legislation and subsequent regulations, sanctions and penalties to be provided may include:
a) written warning;
b) fines;
c) confiscation of collected biological and genetic specimens and equipment;
d) perpetual ban from access to biological resources in the country.
The violation committed shall be publicized in the national and international media and shall be reported by the competent national authority to the secretariats of relevant international governments and regional bodies.