Can the recent convention on biodiversity be called that?
A biopiracy coup
Yes, if the Action Group on Erosion, Technology and Concentration is to be believed. This Canada-based non-governmental organisation -- formerly called Rural Advancement Foundation International; they coined the word 'biopiracy -- claims that the Convention on Biological Diversity (cbd) only recognises the sovereignty of nations over genetic resources found within its borders -- not those of indigenous communities. By doing so, it 'encloses' genetic commons country by country, subverting indigenous rights.
National laws can in fact negate the community rights cbd talks about. So when indigenous communities participating in the seventh conference of parties (cop-7) in Kuala Lumpur last month wanted cbd to take a direct stand on land rights and their rights over genetic resources, rather than subjecting it to national legislation, they were voicing an entirely justified fear.
It is well over a decade since the cbd came into force, but the world has seen little progress in actually ensuring such rights, or benefits from commercial use. Many countries have passed laws that pay lip-service to these rights, in fact creating bureaucratic superstructures that leave very little decision-making power to affected communities.
For instance, the Indian Biological Diversity Act, 2002 dwells a great deal on provisions to prevent individuals and institutions of non-Indian origin from accessing the country's genetic resources. However, under the act, a National Biodiversity Authority, aided by State Biodiversity Boards (sbbs), will take most decisions related to access to genetic resources. These bodies consist mainly of government appointees from related ministries, experts and scientists. Representation from affected communities is not necessary. The sbb's are merely required to "consult" the "local bodies concerned" for decisions -- there is no mention of seeking their prior informed consent.
As a signatory to the cbd, the Indian government has met its commitment. The convention calls for the prior informed consent of "contracting parties" before genetic resources and related knowledge are used. It calls on national governments to set up national authorities to this effect. But India has simply interpreted this to mean that the government is the contracting party entitled to give prior consent on behalf of the people.
Then the deal floundered. The Kerala forest department refused permission to the Kani to either cultivate or collect the aarogyapacha plant, and sell it as a raw material to avp. It even turned down an offer by avp to pay the Kani initial seed money for cultivation, and enter into a buy-back arrangement for five tonnes of leaves a month. The department's reason? Aarogyapacha was an endemic plant.
The problem is that there is no national law that defines the right of the Kani over either the forest, or a genetic resource such as this herb. The only way they can legally collect the herb is if it is declared a minor forest produce. Otherwise, the government can behave like an arbitrary landlord. The Biodiversity Act does little to alter this.
It is hardly surprising, then, that indigenous communities have lost faith in national governments, and depend on global negotiations. This is then resented by nations, who then invariably invoke the sovereignty argument. This argument has been supported by at least a section of civil society in the past, but developing country governments have to wake up. They cannot carry on talking about community rights at the global level, while doing nothing about it at the national level. This will only lead to a further erosion of trust, and communities will have little choice but to turn to the global arena for support.
At the same time, indigenous communities and their representatives must be careful about how much faith they place in the international process. They cannot push for more decisions at this level, but also oppose globalisation. Their route is longer: improving their own capacity to influence their governments on local decision-making. Global-decision-making is a minefield of interests, and controlling this process might just prove impossible.
Anju Sharma is a researcher / consultant on environment and development issues
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