1. Lessons learnt form the SA Bioprospecting Framework
Johanna von Braun, PhD
University of Cape Town, South Africa
8 September, 2010
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2. Origin of the Act
Based on principles put forward by CBD/ABS discussions
SA not active in run up to CBD, but member since 1995 and active since in ABS negotiations under DEA
National Policy Formulation
Biodiversity White Paper 1997
NEMBA 2004
Regulations 2008
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3. Process White Paper Two years of consultations NEMBA
Seven years in making
Regulations:
Three national workshops
provincial consultations Cape Town, Durban, Nelspruit and Pretoria.
representatives from national and provincial government departments, research institutions, traditional healer organisations, private firms, and non-governmental organisations.
Written input in response to the gazetted draft
15 drafts in total
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4. Overview Legislation NEMBA Regulations
a permit is required before a person can: carry out bioprospecting involving indigenous biological resources, and export IBRs for bioprospecting;
a permit will only be issued if there has been disclosure to stakeholders and if their consent has been obtained;
consent must be reflected in a benefit-sharing agreement that allows for sharing of any future benefits
Put Minister in charge of permits (later DM)
Differentiate btw discovery/commercial phase
Foreigners can only apply in combination with SA legal entity
Require regular updating of Minister
Provide for forms including, benefit sharing agreements, export permits etc
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5. TK Under Protection
Only covers TK that is associated with indigenous biological resources
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6. Protection Model State takes role of oversight
TK holders remains in charge of deciding on allowing access under what conditions
TK user in charge of demonstrating that provider conditions are met
Defensive and positive protection
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7. Defining Traditional Knowledge
Def: Traditional Use or Knowledge:
Customary utilisation or knowledge of IBR by an indigenous community, in accordance with written or unwritten rules, usages, customs or practice traditionally observed, accepted and recognized by them, including discoveries about IBRs
Advantages
No fixation, no originality, perpetual, open ended
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8. Defining Community Def. Community
Community of people living or having rights in interest in a distinct geographical area, with a leadership structure and
Whose TK & use of the IBR has contributed to the bioprospecting
Definition related to geographical area / use / leadership structure
Challenges:
Who should benefit? Group of people within community / entire community?
How to identify leadership
Cross border
Partial Solution:
- Community resolution – community defines itself & leadership structure
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9. Ownership of TK Ownership of TK
Ownership of TK can be individual & collective
Ownership open ended
Ownership of IBRs
Linked to landowner - constitutional issues?
Challenges
Silent on broadly known TK
Individual ownership allows for abuse
Genetic resources not ownership of wider public
Government only benefits if IBRs from government owned land
E.g. Nestle case – who should be the beneficiary?
Solutions
- Ownership of TK non-exclusive – if one community enters into BSA other can too
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10. Benefits from TK Monetary Benefits
Establishing of trust fund which all moneys arising from benefit sharing / MTA must be paid
All money for the benefit of stakeholders
DG must manage the fund & is accountable
Distribute money in accordance of agreements
Surplus money to conservation, related research, capacity development of communities
Non-monetary benefits
Listed in form
Highlights particular benefits for communities
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11. TK in the public domain
No distinction btw secret TK and TK in public domain
Public availability different from public domain
Only because something is known doesn’t give you the right to use
Still need to share benefit with TK holder
Challenge:
How do you find out about who owns TK?
Companies are obliged to go searching for TK
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12. Enforcement
Penalties – involves criminal measures – up to 5 yrs in jail and/or 5 Mio ZAR / 10 Mio second conviction
Dealing with retroactivity: Framework applies to ongoing bioprospecting activities that have commenced before months transition phase to register all ongoing projects.
Challenges – enforcement not being applied
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