Access under the Convention on Biological Diversity (CBD) is meant to be of biological or genetic resources, and benefit-sharing refers to the benefits that might ensue from the use of genetic resources or associated traditional knowledge (TK). Access and Benefit-Sharing (ABS) constitutes one of the three objectives of the CBD, next to conservation and sustainable use of biodiversity. With the rise of the bio-industries and accompanying intellectual property rights (IPRs) protection on life forms, genetic resources have become more valuable and lucrative. The CBD declared the States’ sovereignty over their biological resources and authorised them to regulate access to genetic resources and negotiate terms for benefit-sharing as per the principles of prior informed consent (PIC) and mutually agreed terms (MAT) respectively. Hence, the questions of ownership and tenure on genetic resources and TK by indigenous and local communities invariably have an important bearing on the practical modalities of ABS.
Bangladesh is a party to the CBD and signatory of the Nagoya Protocol. As a dualist country, Bangladesh requires implementing domestic legislation to give legal effect to the provisions of international treaties. After 25 years of the adoption of the CBD, the Bangladesh Biological Diversity Act 2017 was enacted to fulfil the State’s international obligations. Since the existing environmental laws broadly covered conservation of biodiversity and biosafety issues, the significance of this Act lies basically in introducing an ABS mechanism. The Act promotes research on biodiversity and biological resources – leading towards biotechnological inventions and their commercial utilisation through preparing a nation-wide biodiversity register and documentation of TK. The commercial utilisation will, of course, generate economic benefits which need to be shared in a fair and equitable manner. Here lies the importance of this legislation as a tool of economic development for the holders of TK related to biological resources.
Sections 4-7 of the Act regulate the access to biological resources within the territory of Bangladesh. A non-citizen, non-resident citizen or any organisation not incorporated in Bangladesh requires to take the prior
approval of the National Committee on Biodiversity (NCB) to collect or obtain any biodiversity, biological resource or TK for research or for commercial utilisation or for bio-survey/bio-utilisation. Moreover, no other person or organisation can, without prior approval of the NCB, transfer to them the results of any research relating to biodiversity or biological resources.
It is further clarified that the publication of any research paper and dissemination of that knowledge in any seminar or workshop is allowed and will not be considered as ‘transfer’ of research result if such paper is published as per the guidelines of the government. Furthermore, for any person – be a citizen or non-citizen, prior approval of the NCB is required to apply for a patent or any other form of IPRs for any invention based on Bangladesh’s biological resources. Every refusal on any such application will have to be grounded, and every refusal can be appealed. It means Bangladesh provides for facilitative access and not prohibitive access to biological resources.
The Act does not recognise any collective or individual rights of indigenous or local communities in determining access to their biological resources and TK. Rather the sole control over biological resources and TK is conferred to the bureaucrats-run NCB, which even has no legal personality. There is no provision of adherence to PIC and MAT procedures in relation to indigenous or local communities. Even the Act contains no mention of the term ‘indigenous’, rather it used ‘local community or people’. Indigenous communities of Bangladesh are mostly forest dwellers but their forest rights on ancestral lands and right to access in the forest lands and resources are not recognised. In CHT region, their land title and community ownership still remain unresolved. The Act just institutionalises this historical injustice – the absence of proprietary rights over their biological resources and TK. By giving over-emphasis to the state sovereignty, it has denied the indigenous peoples’ sovereignty over their resources.
Section 30 of the Act deals with equitable sharing of benefits arising out of genetic or biological resources. The formulation of the benefit-sharing mechanism in the Act is of serious concern. It is provided that the NCB will determine the fair and equitable benefit by applying different parameters like, granting ownership or joint-ownership of IPRs, transfer of technology to the benefit claimers, installing plants in a suitable place for benefit claimers, engaging Bangladeshi scientists or their organisations in research and development, and payment of monetary compensation and non-monetary benefits to the claimants.
The Act indicated six methods of determining fair and equitable benefit-sharing and suggested to follow all or any of those. Under the CBD and the Nagoya Protocol, any domestic ABS system must be based on PIC and MAT. Among the six methods only first method provides for PIC and MAT which is clearly falling short of CBD or Nagoya standard. From the plain reading of the Section, it is quite understandable that the first method was drafted as a method; however, it is submitted that it should be placed in the chapeau of the Section as a pre-requisite for any method of fair and equitable benefit sharing. Moreover, though it is provided for granting joint ownership of IPRs to the NCB, it is unclear as to how without legal personality it will own, claim or enforce the IPRs.
It is submitted to bring necessary amendments or enactments to make the domestic ABS regime, compliant with the CBD and the Nagoya Protocol. It is further submitted that Rules need to be framed to provide more clarity on PIC & MAT requirements and quantum of benefit sharing, particularly with respect to indigenous and local communities for creating a functional domestic ABS system.
The writer is Lecturer in Law, Bangladesh Army International University of Science and Technology.