5. International Bioprospecting Frameworks
Before examining a possible framework for managing bioprospecting in New Zealand, it is useful to examine bioprospecting frameworks designed by other countries.24 Many frameworks in these countries have been developed in response to their biological diversity as well as to the emergence of the Convention of Biological Diversity.25
5.1 The Andean communities: Bolivia, Colombia, Ecuador, Peru and Venezuela
Bolivia, Colombia, Ecuador, Peru and Venezuela26 are all "megadiverse countries",27 making their biological resources of considerable interest to bioprospectors. Over ten years ago, these countries developed a common system to access biological resources in their respective jurisdictions. One of the aims of this common system was to ensure that national access regulations were consistent and in alignment with minimum standards that had been identified by these countries.
National Focal Points and Competent National Authorities have been established in a few of the member countries. An important aspect of the common framework developed by these countries is that it requires bioprospectors to obtain prior informed consent of, and share benefits with, both the Competent National Authority and indigenous, Afro-American and local communities.
In general, the scope of the bioprospecting policies developed by these countries encompass not only all indigenous biological resources, but also those found in these countries due to their natural migration. Furthermore, there is no distinction between commercial and non-commercial research activities in these policy frameworks. Their policy aims to promote the participation of nationals in research activities, general capacity-building measures and the sharing of information about research findings. In the case of public disclosure of research, the country of origin must be mentioned.
Since the implementation of a bioprospecting policy framework, a number of bioprospecting applications have been granted. The framework has been particularly popular in Venezuela, with more than 30 applications approved.
5.2 Australia
Australia is a megadiverse country with over 80 per cent of Australian species being endemic to the country.28 Australia's biological diversity makes it an attractive target for bioprospectors. Australia also has a growing biotechnology sector and a strong scientific and research base. These issues helped spur the State, Territory and Commonwealth governments to develop specific policies to address the regulation of bioprospecting activities. The overarching policy aims are to capture the potentially large commercial value of these unique biological resources, as well as deliver a range of non-monetary, social and environmental benefits.
After establishing a nationwide direction for bioprospecting, an important consideration has been to allow the individual States, Territories and the Commonwealth governments to develop their individual policy frameworks according to their respective jurisdictions. This development is still in progress in some Australian jurisdictions.29
Taking the Australian Commonwealth and Northern Territories governments as an example, both jurisdictions have a Competent National Authority fulfilling a range of roles and responsibilities. The Commonwealth government has the added task of being the National Focal Point for Australia. In terms of the scope of the bioprospecting policy frameworks developed by these jurisdictions, all indigenous biological material is included, and there is no differentiation between commercial and non-commercial research activities. However, on an operational level, the Australian Commonwealth and Northern Territories governments differ on the level of compliance costs expected from bioprospectors engaged in non-commercial research.
New opportunities arise from having a bioprospecting policy
A large association of Japanese companies recently visited the Northern Territory (NT) to discuss the new Biological Resources Act 2006. This association had previously refused to do business with Australian jurisdictions lacking a clear framework governing access to and use of biological resources for the purpose of bioprospecting. As a direct result of this visit and the NT's legislation and policy, a large Japanese company30 is currently negotiating a non-disclosure agreement with the NT government, prior to entering into discussions for a benefit sharing agreement for access to biological resources.
Source: Department of Business, Economic and Regional Development, Northern Territory Government, Australia.
Quantifying how beneficial these frameworks have been since their introduction is a difficult task because they have not been in place for long. In general, frameworks have been successful and a range of benefits, especially those of a non-monetary nature, have been delivered. The core aspects of the Australian Commonwealth and Northern Territories frameworks are outlined in greater detail in Appendix 3.
5.3 Canada
The Canadian government is in the process of deciding how it wants to move forward in the area of bioprospecting and the associated aspect of benefit sharing for access to biological resources. In addition to its provinces, Canada has three territories: the Yukon, the Northwest Territories and Nunavut. All three have similar systems to license research and thereby serve as a form of bioprospecting regulation.
The licensing of research in Canada's Northwest Territories and Nunavut is governed by a single piece of legislation called the Scientists Act. This Act requires anyone who wishes to conduct scientific research or collect samples for scientific research purposes to obtain a licence. Consequently, this Act does not distinguish commercial from non-commercial activities.
The Northwest Territories and Nunavut research licensing systems are used frequently, and many licences have been granted in the various areas of research covered by this Act.
5.4 The Nordic countries: Norway, Denmark, Finland, Iceland and Sweden
The Nordic countries share a common approach – the Strategy for Conservation of Genetic Resources in the Nordic Region (2001–2004). At the beginning of 2002, a follow-up document to this strategy's provisions was released concerning rights and access to genetic material.31 It stated that Nordic countries do not require the sharing of benefits when (wild) biological material is collected for bioprospecting. This is because the costs of developing and administering a bioprospecting framework were considered likely to outweigh the benefits that would be received. It also considered that unregulated access to resources would promote its biotechnology sector. However, the possibility of regulating bioprospecting in the future was not excluded in this document.
Although not a megadiverse country, Norway has biological material of interest for bioprospectors (see information box in 3.4.1). Despite sharing the general approach of the Nordic countries' strategy as outlined above, bioprospecting legislation is still in the process of being reviewed in Norway. Recently, a draft Bill on the Protection of the Natural Environment, Landscape and Biological Diversity was presented. This included some provisions on access to genetic material and called for respect for traditional use by indigenous people and local communities.
5.5 South Africa
South Africa is a biologically megadiverse country, and for this reason, it is an attractive target for bioprospectors. In the early 1990s, South Africa developed bioprospecting and biodiversity policy frameworks in response to a number of factors, for example, the imminent ratification of the Convention of Biological Diversity. One of the aims of these developments was to "ensure that benefits derived from the use and development of South Africa's genetic resources serve national interests".
A National Focal Point and/or Competent National Authority have not been officially designated in South Africa. By default, the issuing authority for bioprospecting permits under the National Environmental Management: Biodiversity Act 2004 is the minister responsible for national environmental management.
The scope of the bioprospecting policy implemented by South Africa is of note because, although it includes all indigenous biological resources,32 there is (unlike in the Andean, Australian and Canadian policies) a distinction between commercial and non-commercial research activities. In other words, bioprospecting is defined as "research on indigenous biological resources for commercial or industrial exploitation". Thus, purely academic research is excluded from the scope of the legislation. In addition, no distinction is made between public and private land, nor between in situ and ex situ resources. However, an access and benefit sharing agreement with private landowners must be in place before a permit is issued to a bioprospector venturing on their property.
Numerous applications have been approved under the South African bioprospecting framework. Many have been between national research institutions and international research universities and companies.
5.6 Lessons that can be learned from these frameworks
Independent studies of bioprospecting frameworks already established in other countries (Colombia, Costa Rica, Brazil and the Philippines, all of which are megadiverse countries) reveal a number of valuable insights.33 For example:
- the benefits from a bioprospecting framework are, for the most part, non-monetary in nature. Monetary benefits take longer to accrue because of variables such as the time lag between collecting biological samples and the development of marketable products;
- a major condition for an effective bioprospecting framework is the question of adequate institutional capabilities, especially in technical and legal areas;
- a bioprospecting framework can be complicated by unclear or inefficient property rights;
- it is essential, although difficult, to ensure the fair and equitable sharing of benefits and to keep track of biological resources as they pass between users during a research project;
- the over-regulation of bioprospecting can counteract the facilitation of this activity;
- bioprospecting policies should be reviewed on a regular basis; and
- a two-track bioprospecting process is best to deal with commercial and non-commercial bioprospecting activities. Non-commercial activities should have a more straightforward process as compared with commercial ventures, in order to avoid discouraging valuable research activities such as studies into biodiversity conservation.
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