We have lived in this area for centuries and used the plants in the territory in a reasonable way, but the ecosystem is under serious threat now, says Luis Guillermo Izquierdo Mora, referring to Sierra Nevada de Santa Marta mountain range.
Spread over 17,000 sq km, in the South American nation of Colombia, Sierra Nevada de Santa Marta is the world’s highest coastal mountain system located just about 40 km from the ocean. Some 30 rivers run down the range. Due to the varied extremes of altitudes and its tropical location, the range represents a near complete spectrum of climate zones, ecosystems, soils and forest types found in South America, and has fostered a remarkable diversity of flora and fauna. UNESCO says it is home to 600 botanical genera, 3,000 species of higher plants, 514 species of birds, 46 species of amphibians, 86 species of reptiles and 120 species of mammals. Many of these are endemic. Given the rich biodiversity and its characteristic features, Sierra Nevada de Santa Marta is often cited as the world’s most irreplaceable nature reserve.
Mora is a member of the Arhuaco People, one of the four indigenous communities in the mountain range that depend on this biodiversity not only for food and medicine but also for rituals and spiritual needs. Nothing exemplifies this dependence more than frailejón (Espeletia sp)—an extremely slow growing shrub native to the country. Mora’s community uses it in rituals for opening and closing of natural cycles such as birth, death or a girl’s first period. In the local culture, the plant is considered equivalent to the father. Frailejón is known for contributing to the water availability—it captures water vapour from passing clouds in its spongy trunk and releases it into the soil through the roots. This helps create water deposits and lakes that eventually form rivers that provide water to the cities.
Frailejón, however, is under severe threat due to rising cases of forest fires and intensive agriculture practices that use pesticides and destroy the land. It is illegal to practise agriculture in the protected biosphere, but some still do it. The ecosystem also faces risks from extractive industries, such as stone mining. “We believe that rocks are the bones of earth and by mining, the industries are breaking these bones,” says Mora, who is the president of ICCA Consortium in Colombia, a global network of indigenous communities. He was in Cali, Columbia’s most populous city, to attend the 16th Conference of the Parties (COP16) to the Convention on Biological Diversity (CBD). Some 190 nations took part in the event held from October 21 to November 1.
Over the two weeks, many issues crucial to Mora were discussed at COP16. His concerns found support in Columbia’s President Gustavo Petro’s plea during the opening of the high-level segment of the meeting, when he said that COP16 should emphasise on the value of life over money and on the need for global democracy over domination.
It was for democracy that the Kunming- Montreal Global Biodiversity Framework (KMGBF), adopted at COP15 in 2022, held indigenous communities at the centre for the first time as it set four overarching global goals to protect nature (such as halting human-induced extinction of threatened species and reducing the rate of extinction of all species tenfold by 2050) and 23 environmental targets to be achieved by 2030. Some of these goals and targets, such as Target 3 that seeks to preserve 30 per cent of the planet’s land and seas, were a point of contention, as some experts said that steps to protect land and seas could result in displacement and sidelining of communities.
COP16 has seen a step in addressing this concern. To support indigenous peoples and local communities (IPLC), a new permanent “Subsidiary Body on Article 8(j) and other Provisions” has been set up. The body will work on issues related to the implementation of article 8(j) and enhance the participation of IPLC in all Convention processes. Article 8(j) pertains to preservation and sustainable use of knowledge, innovations and practices of indigenous and local communities, and equitable sharing of benefits arising from the use of these. The working of the subsidiary body would be developed by the next COP.
In another landmark decision, Parties have adopted a new “New Programme of Work and Institutional Arrangements on Article 8(j) and Other Provisions of the Convention Related to Indigenous Peoples and Local Communities”. The new Programme of Work “sets out specific tasks to ensure the meaningful contribution” of IPLC towards the three objectives of the Convention—(i) conservation of biological diversity; (ii) sustainable use of biological diversity; and (iii) the fair and equitable sharing of benefits—as well as in implementing KMGBF. Parties also decided to recognise the role of people of African descent in implementing the Convention.
The decisions have been celebrated. “This agreement allows us to strengthen our presence in major decisions and thus be able to propose actions more in line with our realities,” Mora tells Down To Earth. “The establishment of the Permanent Subsidiary Body on Article 8(j) will provide a high-level platform to further highlight the contributions of IPs and LCs to protection of the planet and share learnings,” says Jennifer Corpuz, from International Indigenous Forum on Biodiversity, a global network of indigenous governments, non-profits, academics and activists.
COP16 has also taken the first step to operationalise a mechanism to share benefits earned from the use of genetic resources, digital sequence information (DSI) and traditional knowledge. This is KMGBF’s Target 13. For this, a special fund, known as Cali Fund, has been set up (more on this later).
COP16 also saw major disappointments. The Parties could not reach a decision on Target 19 that seeks a new “Strategy for Resource Mobilization” to help secure $200 billion annually by 2030 from domestic, international, public and private resources to implement national biodiversity strategies and action plans. Similarly, there was no discussion on Target 18—the redirection of the $500 billion per year of subsidies that harm biodiversity. This would be taken up at a later meeting.
A fund to share benefits accruing from use of digitised data of genetic resources was set up after exhaustive negotiations on the last day of the Convention
The final plenary meeting on November 1—the last day of the 16th Conference of the Parties (COP16) to the Convention on Biological Diversity (CBD)—dragged on for 11 hours after the designated time without decisions on many agenda items. It had to be suspended due to lack of quorum as the delegates left to catch their return flights.
The major reason for this delay was the discussions on Target 13 of the Kunming-Montreal Global Biodiversity Framework (KMGBF), adopted at COP15 in 2022. The target seeks to increase the sharing of benefits with the communities earned from the use of genetic resources and digital sequence information (DSI).
DSI refers to genetic data such as nucleotide sequences (DNA and RNA) and protein sequences of organisms. The data can be used in manufacturing drugs and cosmetics instead of the actual organism. But DSI’s nonphysical nature (the data can be stored digitally) and use complicates the traditional methods of managing access and benefit-sharing established under CBD’s Nagoya Protocol of 2014—an international agreement which aims at sharing the benefits arising from the utilisation of genetic resources in a fair and equitable way. Though Nagoya Protocol mandates that countries hold sovereign rights over their biodiversity, there is no clarity about these rights in case of DSI.
The first step towards benefit-sharing and ensuring that there is a significant increase of the benefits shared by 2030 (Target 13 of KMGBF) was to operationalise a multilateral mechanism. This has been agreed upon with the setting up of Cali Fund. The multilateral mechanism is a contradiction to the basic premise of CBD which says that countries have sovereign rights over their biodiversity. It supports bilateral agreements on access and benefit-sharing (ABS) with communities. But it is critical because large amounts of DSI are present in public repositories for which the source is not available and this has been put without the knowledge of the communities—a form of blatant biopiracy. The multilateral mechanism, which is non-binding, says that those industries (in relevant sectors) whose income exceeds a certain threshold should contribute 1 per cent of profits or 0.1 per cent of revenue to the Cali Fund. But the agreement on the multilateral agreement was not without what Susana Muhamad, the president of COP16, termed “real drama” on the final day of the Convention. This is how the negotiations unfolded.
Despite 12 days of discussions, Parties were not able to agree on much in the working groups and contact groups. A conference room paper could not be prepared and bilateral discussions and those with friends of co-chairs failed. President of COP16, Muhamad, prepared a draft text, called the president’s text, which was discussed with the Parties on the last day of the meeting and clean text was brought into the final plenary as the “L-Document” to be negotiated for adoption in the plenary late in the evening of the last day of negotiations.
This document was not acceptable to the developing countries. A small group reconvened to discuss the issues further. The group, however, could not agree on whether developing countries should continue to have sovereign rights over a DSI that has been made available in a public database, including a right to receive benefits arising from its use, should the country decide to exercise such a right. For example, a country could establish an open access national database available to the public under its national laws on access and benefit sharing (ABS) and derive benefits from its use. Despite the issue being unresolved, a final text was prepared for negotiations.
At the final plenary, many countries accepted the text. These included Norway, EU, Japan, Canada, South Africa, Mexico and Switzerland. Canada and Switzerland specified that they were happy with the “non-binding” agreement; that this was the first step; and that there was a need for national discussions on implementation. Panama and Peru had some reservations. Panama wanted full autonomy over the funds and wanted 10 per cent of the proposed fund to be earmarked for capacity building. Bolivia wanted a reference to “other knowledge systems” in the preamble. Still, both the nations accepted the text.
India, however, said it will accept the text only when its critical concerns are addressed. India wanted to ensure that countries continued to have sovereign rights over the DSIs. B Balaji, secretary, National Biodiversity Authority, said that these points had been raised since the beginning of the meeting and that India had even sent a mail to the secretariat, but were still not included in the final text.
The atmosphere became tense with Muhamad asking India to reconsider and come back after she has heard from others. After this, more countries pointed out that they have reservations, even while agreeing to the text. These included Zimbabwe, Cuba, Brazil, Chile and Burkina Faso. Brazil reminded the members of the bigger picture that UN Secretary-General António Guterres had painted at the inaugural session, when he said that the countries are discussing DSI is because the developing countries are being plundered as the scientific discoveries and economic growth derived from these are benefiting others. However, Brazil said that even while they were uncertain how these mechanisms would work, there is a need for a collective leap of faith and accepted in deference to the political mandate set at COP15.
The main dissent to the India’s intervention came from Switzerland. The negotiator pointed out that changes in text would mean that they would no longer be able to support the decision. Norway too said that it is against the points that India plans to raise and that these are “red lines” for them. The country’s negotiator asked India to show flexibility and accept the text.
The president announced a five-minute-break but the interlude dragged on for around 45 minutes. Observers at the venue said that during this time, executive secretary of the convention, COP-secretary, co-chairs of the contact group that negotiated DSI draft decision and other negotiators and observers surrounded the Indian delegation to bring them on board.
Finally, Muhamad announced at the plenary that what India wants does not affect the meaning of the text and agreed to put a phrase “without prejudice to the national obligation or ABS” into the annex, “Modalities for operationalizing the multilateral mechanism for the fair and equitable sharing of benefits from the use of digital sequence information on genetic resources, including a global fund”. The first point of the annex now states: “The multilateral mechanism for the fair and equitable sharing of benefits from the use of digital sequence information on genetic resources covers, without prejudice to the national obligation or ABS, digital sequence information on genetic resources...”
The other change was the inclusion of the phrase “and national legislation” to para 21 so that it reads “Where appropriate and subject to national circumstances and national legislation, at least half of the funding of the global fund should support the self-identified needs of indigenous peoples…”
India pointed out that the wording should be “national legislation” and not “obligation” in both these places.
Though this point was there in the preamble of the document, it was missing in the annex on operationalisation. Adding the line to the annex clearly makes it part of the mechanism. The widespread displeasure shown by the developed countries such as Switzerland, Norway and EU indicate that this change is significant.
Switzerland was still not in favour of the change and pointed out that for the fund to work, there has to be an incentive for the companies to use this mechanism. There has to be assurances that they are not hindered by national legislation.
Switzerland pointed out companies night not want to pay to the multilateral fund unless there not assurances that they would not have to pay again due to national legislation. EU called this change “unfortunate”. Both the presidency and UK, the negotiator from the country William Lockhart, who was also the chair of the working group on DSI, reassured developed countries that the addition does not change the meaning of the text. Finally, Switzerland accepted India’s change, saying that these modalities will be discussed again later. There was jubilation on the stage.
Meanwhile, various developing countries chipped in the discussion on how the concerns that they had raised in the meetings were also not included in the final text. Panama’s highlighted that its demand to earmark 10 per cent of the fund for capacity building has been removed at the last minute. The negotiator said that there is a lack of transparency in the processes and small countries are always expected to give in. “Our contribution have not been sufficiently considered even though we have consistently demonstrated a strong commitment to the issue from the beginning. Without a firm commitment to capacity building and support at the global level of the mechanism we are setting small countries like mine up for failure” he said.
With this, a multilateral mechanism for benefit sharing in form of a voluntary global fund—Cali Fund—was operationalised. “Overall, it was pleasing to see that developing countries did not give up their sovereign rights over genetic resources, including on DSI, on a promise of a multilateral mechanism. Since the fund has been established, large companies can start contributing to the fund. Meanwhile, countries should continue to work to reduce the danger of digital biopiracy and improve governance and compliance measures,” Nithin Ramakrishnan, senior researcher at international non-profit Third World Network, tells DTE.
In absence of a multilateral mechanism, industries can use publicly available DSIs without sharing benefits. Sample this. In March 2020, the African Diversity and Inclusion Center, along with Pelum and Andes, both non-profits critical of genetically modified organisms (GMO), examined the case of a genetically modified (GM) potato developed by the International Potato Center in Peru. This potato, which has enhanced resistance to mildew, was created using genes from the Latin American variety for the purpose of commercialising it in Uganda and Rwanda. The modified potato has three specific genes sourced from plants in Latin America, but two of the genes were not collected directly from the plants. Instead, they were synthesised from genetic sequences found in the US GenBank database. The researchers claimed commercial rights to these genes, even though they were synthesised from publicly available sequences. These two genes are Rpi-vnt1.1 and Rpi-blb2 derived from Solanum venturii, collected in Argentina and Solanum bulbocastanum collected from Mexico respectively. Rpi-vnt1.1 was sequenced by Sainsbury Laboratory in the UK and stored in GenBank in 2010, while Rpi-blb2 was collected before 1957 and sequenced by researchers in the Netherlands and added to GenBank in 2005. The financial and scientific collaborations behind the GMO potato involve various entities, including major foundations and companies from the US and the UK. However, there is little mention of benefit sharing with local farmers.
Without the phrase added by India, it was likely that everyone could use the biodiversity and instead of following the Nagoya Protocol directives, simply donate to the multilateral fund. India’s intervention means that if the use of DSI is governed under national ABS laws, regardless how someone accessed the same and whether through database or not, the benefit sharing should be based on the national ABS laws. The Parties opposing India seemed mostly interested in the certificates that they would have received after they contributed to the Cali Fund as this would legitimise their use of biodiversity. Since this contribution is voluntary, users may or may not put in the money in the fund. Even during the plenary, Switzerland and some other countries were clear that the agreement is “non-binding”.
Most of the users of DSI are in the Global North. Not only that, the databases that store these sequences are in the developed countries. These open-access databases store vast amounts of genetic data. There are more than 1,700 databases and repositories of biological data around the world. The International Nucleotide Sequence Database Collaboration, which consists of three large databases (European Nucleotide Archive based in the UK; GenBank based in the US and DNA Data Bank of Japan based in Japan), receives over 23 million sequences per year.
These are sequences of materials that have been mostly accessed without following the processes set under the Nagoya Protocol. The databases do not indicate the exact place from where the material has been sourced or include information on whether it has been sourced with mutually agreed terms with the communities that hold the rights over it. Without this information, users of sequences from these databases do not have any compulsion to share benefits with the communities that have preserved these. Weak legislation benefits the users. Also, since the database is open source, it is difficult to identify the users.
One such user is the research community represented by the DSI Scientific Network (DSN), created in 2020. DSN represents 95 different DSI-using scientists who want to ensure that they can continue to use the data. DSN is funded by grants by organisations such as Alliance of German Scientific Organizations; WiLDSI which is funded by Government of Germany; the Norwegian Agency of International Development; the US’ government’s National Institutes of Health; and the Rockefeller Foundation based in the US.
According to DSN’s position paper for COP16, non-commercial users should have to contribute to non-monetary benefits alone and by putting the sequence in an open source database, they are fulfilling that requirement. They want the money in the Cali Fund to be used for capacity building to increase the data in the data banks, especially from under-represented areas in the world. They agree that while database practices can be improved, database managers cannot be the ABS police. The main reason for this is that only about 28 countries have the Nagoya Protocol system in place.
For DSI’s commercial users, DSN advocates that companies should contribute a percentage of their profits to the global fund. They say this will capture benefits from new, unpredictable uses of DSI, including future artificial intelligence applications. They say that this option can help harmonisation of DSI benefit-sharing across different UN fora. This is important considering that Food and Agriculture Organization of the United Nations has been trying to understand the potential implications of the use of DSI under the International Treaty on Plant Genetic Resources for Food and Agriculture. Similarly, DSI is part of World Health Organization’s Pandemic Agreement; United Nations Convention on the Law of the Sea’s Biodiversity Beyond National Jurisdiction agreement; and World Intellectual Property Organization’s Treaty on Intellectual Property, Genetic Resources and Traditional Knowledge.
This harmonisation, definition of DSI and non-monetary agreements are likely to be discussed at later CBD meetings. “DSI has to be defined clearly because without clarity, users would not enter the mechanism. Lack of definition is an issue as the fund is voluntary. Companies have rules and they will not contribute to the fund unless there is clarity,” Hartmut Meyer, project leader at GIZ GmbH, Germany, tells DTE. In light of the decision on the setting up of the multilateral mechanism, Amber Hartman Scholz, head of department, science policy and internationalisation, Leibniz Institute, Germany and member of DSN, says that as scientists at universities and public research institutes will be responsible for sharing non-monetary benefit like training, capacity building and open data, knowledge and infrastructures, DSN will now provide ideas for how non-monetary benefits can be better captured and connected with what countries need.
However, all researchers are not opposed to sharing benefits directly with communities. Basecamp Research, a London-based startup has set up a system of accessing genetic material from indigenous communities following the PIC and MAT processes, though the terms of the agreements are not in public domain. These materials are then sequenced and put up in an database but only after all information on where the material has been collected from and terms of use have been put in place. This group is funded by pharmaceutical companies such as Roche and Unilever.
Pharmaceutical industry is not happy with the decision. In a press release, director general of International Federation of Pharmaceutical Manufacturers and Associations (IFPMA), David Reddy, said that “the decision adopted does not get the balance right between the intended benefits of such a mechanism and the significant costs to society and science that it has the potential to create”. He said, “The ability to rapidly use scientific data known as ‘digital sequence information’ is essential for developing new medicines and vaccines. Any new system should not introduce further conditions on how scientists access such data and add to a complex web of regulation, taxation and other obligations for the whole R&D ecosystem—including on academia and biotech companies. New technologies that use DSI can contribute to conservation and sustainable use of biodiversity and should be encouraged.” The federation represents over 90 pharmaceutical companies and associations.
Recently, British-Swiss firm AstraZeneca, a member of IFPMA, has reportedly threatened to cut jobs at its UK operation if the government enforces a global push to make companies share profits derived from nature’s genetic codes. The statement was made at a UK government meeting held to discuss a proposed new global levy on drugs derived from the digital forms of biodiversity. A spokesperson for AstraZeneca later denied that the comments were made by their representative.
This does not look very encouraging. The Parties are likely to discuss this again at the forthcoming CBD meetings. If industry does not put in the money in Cali Fund, all the effort could go to waste. Maybe, strengthening the implementation of the Nagoya Protocol would have been easier.
Workings of the new fund to share benefits from DSI
Industries involved in pharmaceuticals; nutraceuticals; cosmetics; plant and animal breeding; biotechnology; laboratory equipment associated with the sequencing and use of digital sequence information (DSI) on genetic resources, including reagents and supplies; information, scientific and technical services related to DSI on genetic resources, including artificial intelligence need to pay.
Companies that, on their balance sheet dates, exceed at least two of three of the criteria (total assets: US $20 million sales; US $50 million; profit: US $5 million) averaged over the preceding three years, should contribute to the global fund 1 per cent of their profits or 0.1 per cent of their revenue, as an indicative rate.
While public databases, academic and public research institutions are not expected to make monetary contributions to the fund, they would need to ensure that the source of the genetic material and whether it has been procured legally can be determined.
Other than the monetary benefits, users will also need to pay non-monetary benefits. These include support to requirements identified by the communities. The sharing of non-monetary benefits will be facilitated through an existing clearing house under the Convention, which will primarily provide information on demand for capacity-building needs, knowledge exchange, and the showcasing and reporting of ongoing non-monetary benefit-sharing activities.
Users can make their payments directly to the fund or through a national authority. A certificate will be issued to the user when the money reaches the global fund. It will be used towards conservation and sustainable use of biodiversity, including through the delivery of activities described in national biodiversity strategies and action plans.
At least half of the global fund will be set aside to support the self-identified needs of indigenous peoples and local communities, including women and youth through direct payments through institutions identified by indigenous peoples and local communities or through governments.
As much as 10 per cent of the fund will be used to support technical development so the Global South/poorest of the poor countries have access to the tools and expertise necessary to fully participate and benefit from DSI on genetic resources.
Allocations will be made using a formula that has been prepared by the secretariat. This would be finalised at COP17. Funding to Parties will be disbursed through direct allocations to countries, who will need to set up a body to receive these funds. The fund will be administered by the UN through its Multi-Partner Trust Fund Office.
The world has not moved much in protecting its biodiversity since the last Conference of the Parties to the Convention of Biological Diversity held in 2022
By the end of COP16, a total of 44 Parties submit revised National Biodiversity Strategies and Action Plans, while 119 Parties submit revised National Targets, representing around 63 per cent of countries. Progress has not been much per se.
“Protected Planet Report 2024” by the UN and a UK non-profit reveals that the global coverage of protected and conserved areas has reached 17.6 per cent of terrestrial and inland waters and 8.4 per cent of marine and coastal areas. The data from May 2021 indicate that 16.64 per cent of land and inland water ecosystems, and 7.74 per cent of coastal waters and the ocean, were protected. The target, as per the Kunming-Montreal Global Biodiversity Framework (KMGBF), adopted at COP15 in 2022, is to have 30 per cent of land and waters under protection. The need is to double the protection on land and triple that in marine areas by 2030 to meet the target.
Biodiversity continues to be under threat as indicated by IUCN’s first Global Tree Assessment, with 38 per cent of the world’s trees at risk of extinction. Decision taken to increase the sharing of Benefits From the use of Digital Sequence Information (DSI) and a multilateral mechanism for sharing benefits from the use of DSI has been set. The users may put in a donation in the voluntary Cali Fund. This could be 1 per cent of profits or 0.1 per cent of revenue. At least half of this is expected to support the self-identified needs of indigenous peoples and local communities, including women and youth within those communities.
Discussion on resource mobilisation postponed to a later meeting. The Global Biodiversity Framework Fund has received a total of $396 million from 12 sovereign and sub-national government. According to KMGBF target 19, there is a need to mobilise $200 billion per year for biodiversity from all sources including $30 billion through international finance by 2030.
This was first published in the 16-31 November, 2024 print edition of Down To Earth