23-05-2012, 04:59 PM
THE BIODIVERSITY ACT
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THE BIODIVERSITY ACT: AN ACT TO PROTECT BIOPDIATES
The Ministry of Environment has circulated a Third draft of the proposed Biodiversity Act which is aimed at implementing India's obligations made as a signatory to the Convention on Biological Diversity.
The present draft is very similar to the one the Swaminathan Committee drafted during Mr. Soz's tenure as Environment Minister. We had critiqued the Swaminathan Committee's draft on grounds that it failed to
a) give legal shape to the inalienable rights of local communities to their biodiversity in the form of seeds, medicinal plants, fish and animal diversity.
b) implement article 8(j) of the Convention on protection of indigenous knowledge and innovation in such a way that it could act as a countervailing force to TRIPs and prevent the biopiracy of basmati, neem, pepper and hundreds of other aspects of our indigenous knowledge and heritage
c) implement article 14 of Convention on Biological Diversity (CBD) to regulate and avoid activities that have adverse impact on biodiversity, and article 19.3 which specifically addresses the potential negative impact of genetically engineered organisms on biodiversity.
The need for having legal protection of indigneous knowledge and regulating and minimising the adverse impacts of economic activity on biodiversity is highlighted by the case of the basmati patent on the one hand and the epidemics of farmers suicides on the other.
The basmati patent has highlighted the need to have biodiversity laws which
a) protect our indigenous innovation as symbolised in the breeding of varieties such as basmati by Indian farmers.
b) protect our farmers from threats posed by patents based on biopiracy which would give corporations like RiceTec exclusive rights to "make" and sell basmati.
Without legal protection given to collective cumulative knowledge and innovation embodied in biodiversity as in the case of basmati, companies like RiceTec will continue to patent our resources and knowledge. Without such legal recognition of collective, community rights to innovation, India will have no means to prevent corporations like RiceTec from establishing a monopoly on basmati production and basmati trade.
The very weak Article 12 on benefit sharing in the present draft is useless in the context of the basmati patent. Are we going to be satisfied having thousands of our fanners pushed out of basmati production and our export trade destroyed by RiceTec while RiceTec gives us a few thousand dollars to ensure that a few farmers grow Indian basmati for use for future breeding by RiceTec?
As I have argued in the briefing paper prepared for the IV Conference Parties of the CBD at Bratislava, this paradigm of "benefit sharing" is in reality enabling global corporations to steal the loaf and then begging them for the crumbs.
We need a biodiversity law that keeps the biodiversity loaf in the hands of Indian people. Retaining the right to the loaf, and not being satisfied with crumbs after the loaf has been stolen includes the articulation and defense of the biodiversity rights of the people of India. It also includes the duty of the government to prevent the destruction of biodiversity on which the ecological and economic security of two thirds of India is based.
The recent spate of suicides in Andhra Pradesh is intimately linked to the spread of monocultures of introduced varieties, their vulnerability to pest attacks and the high rates of indebtedness due to pesticide purchase. In WarangaL, as hybrid cotton displaced mixed crops to cover 90 per cent of the acreage, farmers use of pesticide increased by 700 per cent, creating debts of Rs. 40.000 - Rs. 80,000. Such vulnerability of farmers will accelerate as indigenous crops and diverse cropping patterns are displaced by genetically engineered crops such as Monsanto's cotton. An implementation of Article 14 and Article 19.3 is a necessary element in any law aimed at biodiversity conservation in the Indian context. Without it, millions of species will be pushed to extinction and; 'millions of farmers will be pauperised and driven to suicides.
The present draft has all the above deficiencies but adds some new ones. The first serious negative aspect introduced in the present draft is the exclusion of extracts and products of -biological resources which have undergone chemical alterations during and/or after extraction as byproducts of biological resources. This exclusion nullifies any attempt to prevent biopiracy since most patents based on biopiracy of indigenous knowledge are based on a minor-tinkering in methods of extraction. The exclusion is in effect an implementation of a law to protect biopiracy.
The second serious deficiency in the present draft is the new articles 27-30 which take all decisions related to biodiversity beyond the normal justice system and provide government bureaucrats total immunity before the law. For eg. Article 27 states,
No suit, prosecution or legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is done in good faith in pursuance of this Act or the Rules made thereunder.
No court shall take cognizance of any offence under this Act except on a complaint made by the Central Government or any authority or officer authorised in this behalf by that Government. and Article 30 states,
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order/direction issued by the Central Government or the State Government or the authorities in pursuance of any power conferred by or in relation to its functions under this Act.
The Research Foundation has filed two public interest litigations related to Biodiversity laws in the Supreme Court to ensure that the Government acts in the public interest while drafting new laws. Evidently, Article 27-30 on immunity for bureaucrats is an attempt to become free of accountability to citizens through the courts for the protection of citizen rights. If the present draft would become law, no community or citizen or public interest group could defend people's rights or hold a bureaucrat accountable for abetting and promoting acts of biopiracy and biodiversity destruction. In other words, the bureaucracy of the Environment Ministry would like to have powers to sell and destroy our national wealth without being accountable to Indian people or the Indian courts.
An unaccountable bureaucracy is a threat to democracy and people's rights under any context. When the immunity of the bureaucracy is combined with the power and immunity of global corporations to pirate and usurp the resources and knowledge of people, it becomes a threat to the very survival of people. The people of India are better off without a Biodiversity Act than an Act like the present one which protects and provides immunity to the Biopirates and their partners in the government machinery. It seems that for the government in power Swadeshi implies handing over our biodiversity wealth and our intellectual heritage to global corporations- for global trade. The "Swadeshi" Biodiversity Draft Act is an attempt to end all- citizens rights and citizens freedom in the area of biodiversity and knowledge. It is an attempt to establish the rule of biopiracy and the rule of biopirates.
Environment Protection and Biodiversity Conservation Act 1999
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is an Act of the Parliament of Australia that provides a framework for protection of the Australian environment, including its biodiversity and its natural and culturally significant places. Enacted on 17 July 2000, it established a range of processes to help protect and promote the recovery of threatened species and ecological communities, and preserve significant places from decline.
The EPBC Act established the use of Environment Protection and Biodiversity Conservation Regulations, which have provided for the issuing of approvals and permits for a range of activities on Commonwealth land and land affecting the Commonwealth. For example, commercial picking of wildflowers is regulated under the EPBC Act, and cannot be undertaken without an appropriate permit. Failure to comply with the Act can result in penalties including remediation of damage, court injunctions, and criminal and civil penalties.
The Act is administered by the Department of Sustainability, Environment, Water, Population and Communities.
The Act identifies seven matters of national environmental significance:
• World Heritage properties
• National heritage places including overseas places of historic significance
• Wetlands of international importance (Ramsar wetlands)
• Threatened species and ecological communities
• Migratory species
• Commonwealth marine areas
• Nuclear actions (including uranium mining & building of nuclear waste repositories [1])
2007 review
A review of the Act and actions taken under the act released by the Australian National Audit Office (ANAO) in March 2007, the audit is entitled "The Conservation and Protection of National Threatened Species and Ecological Communities". The audit widely criticised the Department of the Environment and Water Resources for inaction with respect to the EPBC;
key findings of the audit include:
• that the Department has failed to keep the list of threatened species sufficiently up to date and has failed to prepare recovery plans
• that there are still inconsistencies between the federal and state and territory lists of threatened species
• that due to partial or incorrect information there is a risk incorrect decisions regarding conservation may be made
• that the department has been denied funds necessary to meet their obligations under the act by the Government on four occasions.
Related acts
• Endangered Species Protection Act 1993
• Australian Wildlife Protection Act 1998
• Natural Heritage Trust of Australia Act 1997, which established the Natural Heritage Trust, providing funding
State acts
• Threatened Species Protection Act 1995 (TSP Act), Tasmania
• Wildlife Conservation Act 1950, Western Australia
• Flora and Fauna Guarantee Act (1988) (FFG Act), Victoria
• National Parks and Wildlife Act 1972, South Australia
• Threatened Species Conservation Act 1995, New South Wales (TSC Act)
• Nature Conservation Act 1980, Australian Capital Territory
• Nature Conservation Act, Queensland
• Territory Parks and Wildlife Conservation Act 2000 (TPWCA), Northern Territory
• Environment Assessment Act, Northern Territory
The Biodiversity Act - 2002
The Biodiversity Act - 2002 primarily addresses access to genetic resources and associated knowledge by foreign individuals, institutions or companies, to ensure equitable sharing of benefits arising out of the use of these resources and knowledge to the country and the people.
The structures of Biodiversity Act - 2002
A three tiered structure at the national, state and local level is to be established.
National Biodiversity Authority (NBA): All matters relating to requests for access by foreign individuals, institutions or companies, and all matters relating to transfer of results of research to any foreigner will be dealt with by the National Biodiversity Authority.
State Biodiversity Boards (SBB): All matters relating to access by Indians for commercial purposes will be under the purview of the State Biodiversity Boards (SBB). The Indian industry will be required to provide prior intimation to the concerned SBB about the use of biological resource. The State Board will have the power to restrict any such activity, which violates the objectives of conservation, sustainable use and equitable sharing of benefits.
Biodiversity Management Committees (BMCs): Institutions of local self government will be required to set up Biodiversity Management Committees in their respective areas for conservation, sustainable use, documentation of biodiversity and chronicling of knowledge relating to biodiversity.
NBA and SBBs are required to consult the concerned BMCs on matters related to use of biologbenefit claimers?
The benefit claimers are conservers of biological resources, creators and holders of knowledge and information relating to the uses of biological resources.