Bioprospecting Case Study
Maria17 grew up on her marae surrounded by her whanau. As such she was taught about the landscape within her tribal rohe and of the uses of various plants and genetic resources. Maria has been given the role of kaitiaki of the breeds of harakeke within her rohe.
Growing up Rongo, her son, also observed a number of his mother's practices. One in particular was Maria's use of a rare harakeke plant found only in the large forest within their hapu boundaries. This plant is used by Maria to alleviate rheumatism and other pains in the joints and muscles.
Recently, Rongo was approached by a Research Institute which is carrying out a range of publicly-funded research for non-commercial purposes. They have sent Rongo a proposal to come into the rohe to take a sample of this plant (this is called bioprospecting) as they are aware that it is only found in their particular area. The Research Institute is not aware of the way Maria uses this particular plant as rongo. Their proposal indicates that they are interested in researching the plant to see if it has any special properties or features. Their research is for non-commercial purposes at present, but they note that this might change if a commercial application was discovered during the research.
Rongo is aware that his hapu might not be willing to allow access to this plant. He is very mindful that his mother is the kaitiaki of the harakeke within their rohe, and as such is responsible for the physical and spiritual health of the plants.
Accordingly, before approaching his people about the Research Institute's proposal and to ensure their interests are protected, Rongo decides to gather together all the relevant information. He also wonders whether it would be useful to talk with his mother and, if she agrees, to the wider hapu about possibly advising the Research Institute of the particular healing qualities the plant in question has. He wants to gather information on this possibility as well.
What does the Research Institute need to do in order to carry out bioprospecting activities within this rohe?
The particular harakeke is only found in a forest on privately owned land, so the Research Institute will need to get the landowner's consent to come and take a sample. The landowner in this case is a Forest Trust owned by Maria and Rongo's hapu.
What types of benefits can the hapu gain from allowing access?
As a condition of allowing access to the resource on their land, they can negotiate with the Research Institute to share some of the benefits that may arise from the use of this harakeke. These benefits can be monetary or non-monetary.
For more information on examples of monetary and non-monetary benefits see the Secretariat of the Convention on Biological Diversity website.18
What type of information should Rongo obtain from the Research Institute to be able to advise his people on whether or not to grant access to the harakeke?
Before granting access to their land and the harakeke, it is important that Rongo's people are fully informed on the implications of doing so. On this occasion, it would be useful for Rongo to obtain the following information from the Research Institute:
- the contact person within the Research Institute and the collector;
- the quantity of the plant material that will be collected;
- the starting date and duration of the bioprospecting activity;
- the geographical prospecting area;
- an evaluation of how the activity may impact on the environment (for example, how the plant would be accessed (by foot, four wheel drive?) and how frequently (one-off or twice a year?);
- accurate information about the intended use of the resource including, for example: research, commercialisation, taxonomy – how it will be classified, and collection;
- where the research and development will take place (for example in the North Island or South Island of Aotearoa-New Zealand, or even overseas);
- how the research and development is to be carried out;
- the purpose of the collection, research and expected results;
- types of benefits that could come from obtaining access to the resource, including benefits from commercialisation and other uses of the resource;
- indication of benefit-sharing arrangements;
- budget;
- how confidential information, including the applicable Mātauranga Mori, will be treated
This information should help Rongo's hapu to weigh up the costs and benefits of granting the Research Institute access to their land and to the harakeke.
If they do decide to allow the Research Institute to take a sample of the harakeke, what is the best means of granting consent?
It is very important to give consent in writing. This is often referred to as an "access agreement'' and it will set out how the relationship between the hapu and the Research Institute will be managed. It is also important to obtain legal advice before signing an access agreement and to clarify early in the process who will pay for the legal fees associated with the access agreement.
Generally, an access agreement should cover the following areas at a minimum:
- defining the parties to the agreement (for example, if the hapū wanted to control the bioprospecting sample tightly, they may consider contracting with a specific research group within the Research Institute, meaning that a "third party" could be any group outside of the named group in the agreement, including other groups within the same Research Institute);
- the type and quantity of the resource and the geographical area of activity;
- details relating to the collection of material including dates, method of collection, and steps to avoid any adverse environmental impacts;
- any limitations on the possible use of the material;
- whether the terms of the agreement in certain circumstances, for example, change of use, can be re-negotiated;
- whether the genetic resources can be transferred to third parties (that is those not party to the access agreement) and what conditions should be imposed in such cases;
- how the ma- tauranga Māori associated with the particular resource will be respected and protected;
- the treatment of confidential information, including the ma- tauranga Māori;
- provisions regarding the sharing of benefits arising from using the resource, including the Mātauranga Māori associated with it.
If the hapū does decide to grant access to the Research Institute to collect samples of the particular harakeke, they could use a checklist (see Appendix) to help develop the access agreement.
What will happen if the Research Institute decides to commercialise its findings following its research of the harakeke?
The Research Institute have indicated that they only want to obtain a sample of the plant for non-commercial scientific research. At this stage, they have no intention to commercialise the findings of their research. However, if their intentions change, the clause in the agreement about renegotiating terms if the Research Institute wants to commercialise its findings will kick in. If this happens, the renegotiated terms could include provisions to share the commercial benefits in a fair and equitable way with the hapū .
What happens if the hapu tells the Research Institute about the rongoaof the harakeke?
When the Research Institute visits the hapū to discuss their research (before signing the access agreement), they are told that the cream Maria makes from the particular harakeke is great for fixing muscular aches and it works better than anything else they had tried before.
The researchers were not aware that the plant had this particular effect. They discuss the matter and decide to approach Rongo to talk about the possibility of doing some research on Maria's mātauranga Māori of the harakeke.
Rongo is receptive to the idea and thinks there could possibly be some financial benefits for his hapū . He is mindful, however, that the mātauranga Māori which his mother has for this harakeke has been passed on to her from her kuia to hold on behalf of all of the hapū and that she is essentially a kaitiaki of all of the harakeke within their rohe.
For this reason, at a minimum, he and his mother would need to be assured that the integrity of their mātauranga Māori would be respected before approaching the wider hapū about the Research Institute's proposal. Rongo wants to gather information on possible safeguards to assist his mother's and his hapū 's consideration of the proposal.
What types of commitments should Rongo seek from the Research Institute in relation to Maria's mātauranga Māori?
At a minimum, there are three commitments that would be useful:
- The integrity of the Mātauranga Māori relating to the harakeke is respected by the collector and user and the collection and use is carried out in a way that doesn't denigrate or in any way affect the integrity and value of the Mātauranga Māori.
- Fair and reasonable effort is made to preserve both the harakeke and the Mātauranga Māori.
- Adequate compensation and sharing of benefits is provided including a recognition of the hapū who owns the land where the harakeke sits and whose Mātauranga Māori is contributing to this opportunity.
What if the hapū agree to share their knowledge on this occasion?
The access agreement should be drafted setting out the protocols and conditions for use of the mātauranga Māori, including the commitments set out above. These provisions should be approved, and preferably drafted, by the hapuor its legal representatives. For example, it is possible to restrict the use of the mātauranga Māori to certain purposes, or to prohibit publication of certain aspects of it. Any proposed agreement should include these or similar provisions that reflect the collective wishes of the hapū .
What will happen if the Research Institute wants to apply for IP rights over an outcome of their research based upon this plant resource?
The proposed access agreement should specify how any formal IP rights will be addressed, including who will own, manage and enforce the IP rights.
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