TITLE: Plant Breeder's Right: Mauritius Adopting UPOV Model Law as Opposed to the African Union Model Law AUTHOR: Selva Appasawmy DATE: 19 October 2004 NOTE: The author can be contacted at ratnum2000(at)yahoo.co.uk PLANT BREEDER'S RIGHT MAURITIUS ADOPTING UPOV MODEL LAW AS OPPOSED TO THE AFRICAN UNION MODEL LAW By Selva Appasawmy 19 October 2004 Mauritius is in the throes of joining UPOV and adopting a Plant Breeder's Right law. The Bill is now in front of the UPOV, (The International Union for the Protection of New Varieties of Plants), and will be decided upon by UPOV Council on the 21 October 2004, as to whether it is compatible with its convention before admitting Mauritius as a member.[1] It is believed that once the UPOV Council gives a positive answer on our Plant Breeder's Right Bill,[2] it will be a matter of rubberstamping the Bill into law at the Mauritian National Assembly. Just as was the case for the GMO Act,[3] for our proposed adhesion to UPOV and the adoption of the Plant Breeder's Right Bill also there have been no information given, let alone consultation with civil society and with the public in general. Apart from the proponents of this Bill hardly anyone in Mauritius is aware either of our application for adhesion to UPOV, along with its consequences or what the Plant Breeder's Bill is about. For those of us who have memories that span more than the latest soundbite would recall that in the 70's, while Sir Satcam Boolell was Minister of Agriculture of the then labour government, instructions were given by his department to uproot all the imported citrus fruit plants (oranges and tangerines) in Mauritius and Rodrigues under the pretence that those trees were vulnerable to certain diseases. In fact the only motive for such an act was to safeguard the monopoly of the fruit importers and the interest of the soft drink manufacturers. This episode is one in a long list of wicked acts against the interest of this population. Then about a decade ago, the Ministry of Agriculture in collaboration with the French government imported selected plants of vines to sell to the population. All those plants were snatched up by the Sugar Industry ensuring that not a single plant went 'out' and by an incredible about turn the Ministry told the public that vines do not grow well on Mauritian soil, while the Sugar Industry were selling grapes produced locally onto the local market. More recently the MSIRI and other research institutes have discovered what was known for years by our grandmothers that many of the indigenous plants of Mauritius have medicinal properties. These institutes set up seed banks and plant nurseries [4] -- then the present government came up with some extraordinary measures. War on fallow lands ('terrain en friche') was declared. Anyone who left a bit of wild grass on his plot of land was fined Rs. 10,000 [5] -- the term used by the local authorities in fining the people was that they allowed 'noxious vegetation' to grow on their land. People were thus forced to 'clean up' their plots of land, every three months, by using either herbicide or just cutting down the overgrowth and burning them. This, on an overpopulated and overbuilt island is causing a terrible loss of habitat for wildlife. No indigenous plants or wild grass is allowed to grow on any bit of land found on the island except on nature reserves (mountains and forests). Significantly, in April 2003, the government presented a Bill for an amendment to the Forests and Reserves Act 1983 [6] -- that amendment was voted less than a week later -- the amendment goes thus: "3A Control of access to nature reserves The authorised officer may prohibit or restrict access to any nature reserve, and shall cause signs to be displayed in the nature reserve indicating the prohibition or restriction of access. 4. Section 14 of principal Act amended Section 14 of the principal Act is amended by adding the following new subsection - (5) Except with the authorisation of the authorised officer, no person shall enter into or remain in a nature reserve in which a sign prohibiting or restricting public access is displayed pursuant to section 3A, otherwise than in compliance with the indication in that sign." Prior to this amendment, the Forest Reserves Act simply said that people should respect the natural environment and not behave noisily or cause damage in nature reserves. Now with this amendment at any moment, without any notice, any of our mountains, hills or bits of forest can be prohibited access to the public, by just putting a sign up! The Government seems to have put all the right legislation in place for what is about to happen to this population. We have already had a glimpse of what is about to take place. We all know the story with what is known locally as Mazanbron (Aloe Vera), which was a 'nuisance' plant that grew everywhere on the island and that today not a single plant can be found, except in 'forest reserves'. The private sector is now planning to cultivate Mazanbron to sell to the public due to high demands. What has happened to the population in general has also been the fate of the small vegetable growers. All types of vegetable have been grown on the island for the last two centuries on the fertile soil of Mauritius. In the 70's the 'private sector' (corporations) started to make incursions in this field to the point where today the vegetable growers have to pay exorbitant amounts for their seeds. Many of the excellent indigenous or imported varieties have disappeared leaving no other choice to the growers than to buy hybrid seeds from the seed company -- which seeds often do not always produce good seedlings to be saved from one crop to the next. Now, with the advent of Genetic Engineering and requirements from the WTO, those who have had a traditional and natural tendency towards monopolies have found an excellent alibi -- thus to put the final nail in the coffin of freedom, the government is coming up with the Plant Breeder's Right Bill. This bill if passed into Act will put in the hands and for the exclusive benefits of a few individuals all the traditional knowledge brought to this island by our ancestors from various parts of Africa, Madagascar, India, China and Europe, along with the knowledge that our ancestors have adapted to the local native plants as well as all the plants nature so generously provided for us on this speck of land. When the government talks about our affinity and belonging to Africa -- these only seem to be used as a screen for local political advantages or used as a lever to take whatever advantages we can gain from the continent for the benefits of a select few Mauritians. If there were any sincerity there, we would have abided by what we have signed and show a minimum of solidarity to our African counterparts. The African Union has painstakingly, with the support of various specialists, drafted a model Plant Breeder's Right legislation which is supposed to be followed as a model by all African countries and which is a far fairer model than the one presented by the government. The Mauritius Prime Minister who is also the actual President of the SADC has totally ignored the African Union model legislation, quite appropriately named "For the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources"[7] to adopt instead, lock, stock and barrel the UPOV model law,[8] for the benefits of a handful of powerful Mauritians, who seem to work in cahoots with the US and European multinationals. This law would give the right to an individual or an organisation classified as a breeder and to his descendants to own all the rights on a plant and its use for profits and this law classifies as a plant breeder: "the person who bred, or discovered and developed, a variety, - the person who is the employer of the aforementioned person or who has commissioned the latter's work, where the laws of the relevant Contracting Party so provide, or - the successor in title of the first or second aforementioned person, as the case may be" Is this not incredible! If someone discovers a plant that has not been catalogued yet, but still a creation of nature or God, then that person if he registers it first, will have the sole economic benefit from that plant! If that is not the colonisation mentality, then what is it? Significantly the proposed legislation takes absolutely no account of the rights of farmers (planters), the community and its ownership of traditional knowledge -- a Bill totally biased in favour of plant breeders! Adopting the Bill in its present form would represent one of the biggest frauds ever undertaken against the Mauritian people in general and towards small planters in particular, for the benefits of the few. A quick glance at the African Union model legislation would point to us that the whole philosophy behind the proposed Mauritian legislation is at the opposite pole to the African Union model, to which we are party. The former based on UPOV model is only concerned with Plant Breeder's Rights whereas the African Union Model law provides a balance between the Right of the Community, that of the Farmer and the Breeder's right. Yet the African Union Model law is clear and starts without any ambiguity thus, "the State and its people exercise sovereign and inalienable rights over their biological resources" "the rights of local communities over their biological resources, knowledge and technologies that represent the very nature of their livelihood systems and that have evolved over generations of human history, are of a collective nature and, therefore, are a priori rights which take precedence over rights based on private interests" "...all forms of life are the basis for human survival, and, therefore, the patenting of life, or the exclusive appropriation of any life form or part or derivative thereof violates the fundamental human right to life" "it is the duty of the State and its people to regulate access to biological resources and to community knowledge and technologies" "the State recognizes the necessity of providing adequate mechanisms for guaranteeing the just, equitable and effective participation of its citizens in the protection of their collective and individual rights and in making decisions which affect its biological and intellectual resources as well as the activities and benefits derived from their utilization" And it recognises the Rights of Farmers: "Farmers' Rights are recognized as stemming from the enormous contributions that local farming communities, especially their women members, of all regions of the world, particularly those in the centres of origin or diversity of crops and other agro-biodiversity, have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production; and For farmers to continue making these achievements, therefore, Farmers' Rights have to be recognized and protected." In India where they adopted the "Plant Breeder's, Farmer's Right bill", [9] which in fact falls far short of the necessary protection for the rights of communities, there has at least been consultation on the issue with Civil Society since 1993 over there. The Rights of the community and that of Farmers (planters) are the very basic requirements that need to be respected by the Mauritian Bill before any meaningful consultation with civil society can even begin. The Mauritian Plant Breeder's Right Bill in its present form is extremely dangerous and detrimental to the population as a whole and our adhesion to UPOV would not be in the interest of Mauritians. It is hoped that our Prime Minister, who is also the present President of the SADC will set aside this Bill and adopt the African Union model law to which Mauritius is party to, and withdraw our application to join UPOV, otherwise we would understand that only the interests of a few are safeguarded and that all the noises made in terms of the importance attached to our membership of the African Union and that of preserving our traditional knowledge (culture) are just hot air meant only to fool some of us. It would also be a most extraordinary irony that it was Mauritius itself, which presented to the WTO (TRIPS Council) in September 2000, the Africa Group position,[10] on Article 27.3 (b) of the TRIPS agreement relating to Plant Breeder's Rights, as reflected in the African Union Model legislation! Selva Appasawmy 19 October 2004 [1] Agenda of 38th session of UPOV council on 21 October 2004: http://www.upov.int/en/documents/c/index_c38.htm [2] Mauritius Plant Breeder's Rights Bill: http://www.grain.org/brl/?docid=688&lawid=2145 [3] The Mauritian Paradox -- GMO legislation: http://www.biosafetyafrica.net/Comments_Biosafety_Law_Mauri tius.pdf [4] Ministry of Agriculture -- Horticultural: http://ncb.intnet.mu/moa/hort_anx.htm [5] Measures by the Ministry of Environment to control fallow land: http://www.lexpress.mu/display_article_sup.php?news_id=655 [6] Forest and Reserves Amendment Act: http://mauritiusassembly.gov.mu/bills/2003/bill8.doc [7] AU Community Rights Model Law: http://www.grain.org/brl/?docid=798&lawid=2132 [8] UPOV convention: http://www.upov.int/en/publications/conventions/1991/w_up91 0_.htm [9] Comments by Suman Sahai on India's Plant Variety Protection and Farmer's Right Act: http://www.iprsonline.org/ictsd/docs/SahaiBridgesYear5N8Oct 2001.pdf [10] Document IP/C/W/206 sent by Mauritius presenting the AU position to TRIPS council on 20 September 2000: http://www.geneva.quno.info/pdf/27.3b%20proposals.pdf