6. Chapter Six : Conclusion and Recommendations
6.2 South Africa
South Africa, now having ratified the Nagoya Protocol, must be prepared to meet its international obligations when the Nagoya Protocol does come into force. As present, the gaps and inconsistencies in South Africa’s ABS legislation limit the achievement of a coherent legal framework that facilitates access to the genetic resources and associated traditional knowledge of indigenous communities, with a view to ensuring the fair and equitable sharing of benefits derived from the use of such genetic resources or traditional knowledge.
623 Kamau, EC, Fedder, B & Winter, G (n. 50) at 248.
624 Ibid at 249.
625 Jonas, H et al (n. 6) at 49.
626 Jospeh, RK (n. 10) at 92.
124 6.2.1 Capacity Building
From an implementation perspective, there are undoubtedly numerous challenges, with capacity development being critical. Capacity needs to be developed at national level in order to ensure firm leadership, to provide strategic guidance and to furnish technical assistance to bioprospectors, indigenous communities and provincial government. The relevant expertise cannot be easily or quickly gained due to the complex nature of ABS, bioprospecting and indigenous communities. It will therefore be essential for national government to include as part of its staff, individuals with the relevant scientific, commercial and other relevant expertise so as to ensure that well-informed decisions are made in the context of ABS. Although an expert ABS task team was established to advise the national government on the implementation of ABS measures, such task team was confined to government representatives only and failed to include the various other stakeholders involved in bioprospecting.627
Capacity building is necessary not only within government but also among indigenous communities and supporting organizations affected by bioprospecting. From a practical perspective, this could involve the creation of a package of translated and simplified information or material that is relevant to the interests and rights of the various indigenous communities.628 6.2.2 NGO’s and Civil Rights Organizations
Having regard to the fact that indigenous communities depend largely on the support of NGOs and civil rights organizations, to be legally and financially empowered in ABS matters, the lack of provision for public participation in South Africa’s ABS legislation, with particular regard to the bioprospecting permitting process, requires redress. It is suggested that the bioprospecting and ABS provisions of the Biodiversity Act be amended to the effect that they are brought within the ambit of Sections 99 and 100 of the Act, thereby requiring the Minister of Environmental Affairs to follow a consultative and public participation process, when dealing with bioprospecting permit applications. This would ensure that adequate notice containing sufficient information relating to the proposed bioprospecting is given, and it would, more importantly,
627 Wynberg, R & Taylor, M (n. 269) at 220.
628 Ibid at 220-221.
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enable NGOs and civil rights organizations to make more informed representations and objections on behalf of the relevant indigenous communities.
6.2.3 Database of Permits
Due to the range of laws that are impacted by the Biodiversity Act and the variety of permits required by these laws, Wynberg and Taylor recommend that a single electronic database be created for permit applications for the use of biodiversity, which would cover ABS, research permits and permits relating to threatened and protected species.629 Such database could include information pertaining to the application, its current status and details regarding permits already granted, which could assist in avoiding conflict between permits being granted in terms of provincial and national legislation, respectively.630 This type of information could further assist in determining the volumes of genetic material being traded, which in turn would help in determining the benefits due to the indigenous communities who control such genetic resources or traditional knowledge.631 The lack of such information has the potential to prevent compliance with, and negatively impact on, the implementation of benefit-sharing agreements. Adequate monitoring, enforcement and compliance are essential to ensure the effective implementation of an ABS system.
6.2.4 Overlapping Authorities
Notwithstanding the strides South Africa has taken in establishing ABS legislation, it would appear that the wider implementation challenges pertaining to traditional knowledge use and protection have not adequately been dealt with in the ABS framework. In this regard, although the Department of Arts and Culture has been a strong leader in the development of policy and laws relating to the protection of indigenous knowledge systems, the Department of Environmental Affairs, which has limited knowledge of working with indigenous communities, is responsible for determining whether indigenous communities are adequately compensated for the use of their genetic resources and traditional knowledge associated with such genetic resources.632 Accordingly, from a practical perspective issues relating to traditional knowledge,
629Ibid at 221.
630Ibid.
631Wynberg, R (n. 494) at 138.
632 Ibid at 137.
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indigenous communities and biodiversity in South Africa are often dealt with by overlapping Departments, which aggravates the already insurmountable implementation challenges.
6.2.5 Prior Informed Consent and Benefit-Sharing Agreements
The South African ABS regulatory framework for the first time obligates bioprospectors to obtain PIC from indigenous communities, who are custodians of genetic resources and the holders of the associated traditional knowledge, prior to the commercialization phase of bioprospecting. It further requires the various stakeholders to enter into a benefit-sharing agreement so as to ensure that the indigenous communities in control of the genetic resources or the holders of traditional knowledge are adequately compensated. Although the PIC and benefit- sharing provisions in South Africa’s ABS legislation constitute a major advancement in addressing the historic exploitation of the rights and knowledge of indigenous communities, the failure of the Biodiversity Act to vest ownership of genetic resources in the State invariably has the potential to marginalize indigenous communities, as communal land-owners.
The South African land system applicable in communal areas is not well understood by western society and this could result in bioprospectors being more inclined to seek out resource owners whose ownership is more clear cut. This has negative connotations not only for indigenous communities, but for South Africa as a whole. The amending of the Biodiversity Act to vest ownership of genetic resources in the State has the potential to remedy this challenge. The suggested amendment to the Biodiversity Act must, nevertheless, impose certain basic requirements for access, which will oblige bioprospectors to obtain the PIC of indigenous communities for bioprospecting activities that fall within their communally owned land and to ensure the fair and equitable sharing of benefits that derive therefrom, with the relevant indigenous communities.
6.2.6 Implementation Challenges
More importantly, the implementation of South Africa’s ABS legislation remains a major challenge. Legal clarity and specificity in PIC and benefit-sharing procedures is critical, particularly with regards to the complexity and multiplicity of indigenous communities in South Africa. From an implementation perspective, there nevertheless remains a need for flexibility and adaptability, having regard to the varying nature of indigenous communities. However,
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specificity is vital in ensuring adequate information disclosure for the purposes of enabling compliance and accountability. A delicate balance between flexibility and specificity is therefore required.633
Communication, cooperation and consultation is critical to ensure that indigenous communities receive clear and honest information regarding the proposed bioprospecting, enabling them to make informed decisions during the ABS negotiations. In addition, communication, cooperation and consultation are equally important to ensure that government establishes simple and clear information channels, as well as transparent and fair consultation processes in ABS matters.
Comprehensive integration of the approaches and processes adopted by indigenous communities and those adopted by government and bioprospectors is vital.634 Such integration can be achieved by means of laws and policies, consultative processes or Biocultural Community Protocols.635 6.2.7 Addressing the Power Imbalances
The internationally approved legal requirements, such as PIC and BSAs, are still capable of circumvention and the injustices perpetuated by high-powered resource-extractive companies reveals the power imbalance between the stakeholders involved in bioprospecting. Accordingly, mechanisms to enable indigenous communities to engage on a more equal footing are essential.636 Notwithstanding international Conventions and Protocols, as well as progressive domestic ABS legislation, indigenous communities need to pro-actively assert their rights so as to ensure the equality and fairness advanced by the law.
While South Africa has developed a comprehensive ABS regime, which not only aligns with its obligations under the CBD, as well as most of the provisions of the Nagoya Protocol; but in fact goes beyond the scope of what is required, implementation measures remain lacking in South Africa’s fight against the misappropriation of the biological resources and traditional knowledge of its indigenous communities. It would appear that, although progressive ABS laws, which offer recognition of the rights of indigenous communities, are necessary, they are, on their own, insufficient in ensuring that the rights of indigenous communities are in fact asserted and
633 Wynberg, R, Chennells R and Schroeder, D (n. 393) at 349.
634 Ibid.
635 Ibid.
636 Ibid at 348.
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protected, in relation to bioprospecting matters. Having regard to bioprospecting in South Africa being influenced by the country’s Apartheid history, the complex dynamics of cultural diversity, as well as the economic aspirations of the various parties involved and the emerging economy of South Africa, there is a need for an entirely new approach.
The Nagoya Protocol has presented a new era of biocultural rights. However, the ability of indigenous communities to adequately exercise their rights in the protection of their traditional knowledge and genetic resources, as well as the protection of their customary uses of their biological resources, will depend largely on whether they understand the ABS legal framework, in the context of their biocultural rights. In addition, such communities will need to understand the practical implementation challenges of engaging in ABS and they will need to be empowered to overcome the power inequalities inherent in their interactions with government and bioprospectors.
6.2.8 Biocultural Community Protocols
Community Protocols can undoubtedly assist indigenous communities in ABS matters, as such Protocols are community-led instruments which have the potential to provide a useful framework, with which communities can make informed decisions on whether ABS will benefit their local endogenous development aspirations.637 In so doing, such Protocols invariably assist in minimizing the implementation challenges of national ABS law and policy. While Community Protocols can provide a useful tool in combating the implementation challenges of South Africa’s ABS legislation, such Protocols are not a panacea. They can assist in mobilizing and equipping indigenous communities to become more pro-active in bioprospecting matters.
However, they will have a reduced impact if they are not recognized in national legislation.
Notwithstanding the recognition of Community Protocols in the Nagoya Protocol, such tools provided for the advancement of the customary rights of indigenous communities, will fail to achieve their objectives, until there is a fundamental change, and such Protocols are given recognition at national level.638 As Section 2 (b) of the Biodiversity Act stipulates that an objective of the Biodiversity Act is to ‘give effect to ratified international agreements relating to
637 Ibid.
638 Swiderska, K et al (n.157) at 37.
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biodiversity which are binding on the Republic’,639 it is accordingly suggested that Biocultural Community Protocols can be given specific recognition in South Africa by way of amendments to the Biodiversity Act and its related Regulations. The recognition of such Protocols under South African national law will compel adherence with the provisions of Biocultural Community Protocols of indigenous communities, thereby strengthening their legitimacy and empowering indigenous communities, in bioprospecting matters.