4. Chapter Four : Challenges in Implementing South Africa’s
4.8 Transboundary Genetic Resources and Traditional Knowledge
A further lesson to be learned from the San-Hoodia case is that often genetic resources are found across political boundaries, with knowledge of such resource being shared among the various indigenous communities that straddle the boundaries. More importantly, the laws and policies relating to ABS and traditional knowledge vary between the different countries. In the San- Hoodia case, the traditional knowledge relating to the use of Hoodia was shared among the San people in Botswana, Namibia and South Africa. Accordingly, the plant and traditional knowledge about its use extend across Botswana, Namibia and South Africa, which invariably presents complexities and challenges, with particular regards to the distribution of benefits to the various impoverished and indigenous communities across three countries. The differing ABS policies between the countries further exacerbated the challenges.
4.8.1 South Africa’s Role
In the San-Hoodia case, while South Africa had significantly advanced the development of commercial partnerships with multinational companies; Botswana and Namibia, by comparison, had not yet developed any commercial partnerships.491 In addition, while South Africa has now
489 Sec. 82(3)(a) & (b), NEMBA and Regulation 8(1)(d), BABS.
490 Reg. 8(2), BABS.
491 Wynberg, R & Chennells, R (n. 402) at 116.
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adopted ABS legislation which recognizes the San as an indigenous community with rights to benefit from the use of Hoodia, the policies of both Namibia and Botswana remain ambivalent.492 Namibia and Botswana both do not have ABS legislation in place and they both regard the benefits derived from Hoodia as belonging to the State and not the indigenous communities.493
4.8.2 ABS legislation and policy in Namibia
Although Namibia adopted a progressive and proactive ABS policy since as early as 1997, there is no national ABS legislation in place as yet.494 Namibia took the decision to delay establishing ABS legislation until the adoption of the Nagoya Protocol.495 An Awareness Raising Workshop recently held by the NGO, Natural Justice, and attended by the Namibian Minister of Environment and Tourism, Namibian Members of Parliament, Traditional Authority representatives and representatives of indigenous and local communities, aimed to inform key decision makers in Namibia about the importance of the sustainable utilization of genetic resources in order to preserve Namibia’s biodiversity and enhance the livelihoods of the people of Namibia.496
Notwithstanding the lack of ABS-specific legislation in Namibia, Namibia has regulated ABS in the country through bilateral agreements, existing legislation497 that facilitates ABS and the
492 Ibid.
493 Ibid. Although this is a 2009 source, it does not appear that there have been any more recent developments regarding the establishment of ABS legislation in Namibia and Botswana.
494 Wynberg, R, ‘Policies for Sharing Benefits from Hoodia’ in R, Wynberg et al (Eds.),Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia Case, Springer Science and Business Media B.V 2009, 127 at 134.
495 Union for Ethical Biotrade, ‘Access and Benefit Sharing : Evolving laws and regulations around the World’ 1 at 3. Available at http://ethicalbiotrade.org/dl/benefit-sharing/UEBT%20ABS%202013.pdf. Accessed on 12th November 2013.
496 Natural Justice website, ‘Natural Justice advises Namibian Government on draft ABS Legislation,’ 24th February 2012, Available at http://natural-justice.blogspot.com/2012/02/natural-justice-advises-namibian.html. Accessed on 12th November 2013.
497 Such legislation includes:
(i) Nature Conservation Ordinance No. 4 of 1975, which is the primary legislation governing nature conservation in Namibia and puts in place a permitting system for protected species such as Hoodia, by requiring prior authorization for harvesting and trade. Such legislation also establishes a permit requirement for the picking, transport, sale, donation, export and removal of protected plants and more importantly, it requires the written permission of landowners before any indigenous plant is picked.
(ii) Environmental Management Act No. 7 of 2007, which establishes benefit-sharing as a requirement and sets up an advisory council, which includes access to genetic resources.
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active engagement of government, research institutions and NGOs via an Interim Bioprospecting Committee (IBPC).498 Such Committee was established in 2007, to regulate and facilitate all bioprospecting activities.499 Namibia has now developed draft ABS legislation, which has undergone regional consultations as part of the review process and aims to create a new dedicated unit on genetic resources and traditional knowledge within the Namibian Ministry of Trade and Environment, which will replace the IBPC.500 This draft legislation on ‘Access and Benefit Sharing for Sustainable Utilization of Cultural and Natural Assets’ is under review and close to finalization.501
4.8.3 Botswana’s ABS legislation and policy
Similarly, Botswana does not have specific legislation that regulates bioprospecting activities, ABS and traditional knowledge, although there is a proposed National Environmental Management Act, which will most likely include provisions to regulate such activities.502 Of significance is that, although there is recognition of the importance of traditional knowledge, the requirements for PIC from indigenous communities are not articulated in any law or policy in Botswana.503 Most natural resource statutes in Botswana do not specifically deal with ABS and such laws are instead designed to meet the objectives of conservation and sustainable use.504 There are, however, various pieces of sectoral policy and legislation, which are, to an extent, relevant to ABS.505
(iii) Environmental Investment Fund of Namibia Act No. 13 of 2001, which establishes a fund to support environmental and natural resource management in Namibia. Wynberg, R (n. 495) at 131.
498 Ibid at 134.
499 Union for Ethical Biotrade (n. 495) at 3.
500 Ibid .
501 Ibid.
502 UNU-IAS Institute of Advanced Studies, ‘Access to Genetic Resources in Africa : Analyzing ABS Policy Development in Four African Countries’ UNEP, 2008, 1 at 20. Available at http://www.ias.unu.edu/resource_centre/ABS%20in%20Africa.pdf.Accessed on 15th October 2013.
503 Wynberg, R (n. 494) at 134.
504 Ibid .
505 These include:
(i) Wildlife Conservation and National Parks Act No. 28 of 1992, which governs the use of resources in national parks, protected areas and game reserves. This Act also governs the procedures to access biological resources;
(ii) The Agricultural (Conservation) Resources Act of 2006, which provides for the establishment of regulations to control access to biological resources and sets in place permitting processes for the harvesting, export and trade of Hoodia. This Act contains no specific provision for PIC and BSAs;
(iii) Forest Act No. 38 of 2004, which protects and regulates the use of forest resources;
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There is therefore a somewhat decentralized ABS institutional framework within Botswana, which is largely guided by various legislation administered by varying government departments.
The key elements of prior informed consent, negotiating BSAs and MATs, and a clear bioprospecting application process for ABS are unfortunately lacking in the current institutional framework of Botswana’s legislation.506 The Wildlife and National Parks ActNo. 28 of 1992 and the Agricultural Resources Act of 2006, provide, to a reasonable extent, structures, processes and procedures for application to access resources, albeit not specifically genetic resources.507 These two Acts provide a solid foundation on which to develop ABS legislation in Botswana. As it stands, however, because Botswana’s natural resource legislation was not tailored to deal with ABS, it does not contain the necessary elements to meet the CBD’s objectives for access to and equitable sharing of benefits from genetic resources.508
4.8.4 Complexities involved with Transboundary genetic resources and traditional knowledge
Accordingly, the three countries involved in the San-Hoodia case are at varying points of legislating for ABS and have adopted different approaches to bioprospecting and ABS. The San- Hoodia case raises critical questions of how benefits can be equitably shared by indigenous communities across various regions and what policies can best be implemented at regional level.
Although some mechanisms have been put in place by the three countries to collaborate regarding Hoodia poaching and trade, as well as the trade and transport of illegally harvested material, the more pertinent issues relating to benefit-sharing and the rights of indigenous people remain disconnected and incoherent between the countries.509 Furthermore, notwithstanding the San-Hoodia Trust implementing benefit-sharing across regional boundaries, based on the (iv) Tribal Land Act No. 32 of 2002, which recognizes that a community collectively owns the land as well as the resources on it. The decision making power in respect of such resources is, however, given to tribal land boards.
This has relevance for PIC and the negotiation of BSAs;
(v) Community-Based Natural Resource Management Policy of 2006, which includes provisions on traditional knowledge protection and benefit-sharing and aims to protect the intellectual property rights of communities;
(vi) National Biodiversity Strategy and Action Plan of 2004, which recommends the development of a strategy on ABS, traditional knowledge and property rights. Wynberg, R (n. 495) at 132.
506 UNU-IAS Institute of Advanced Studies (n. 502) at 17.
507 Ibid.
508 Ibid at 24.
509 Wynberg, R, Chennells, R and, Schroeder, D (n. 393) at 346.
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acceptance by the San of the collective and shared nature of Hoodia knowledge, there remains a necessity for benefit-sharing strategies to be developed at regional levels, particularly where genetic resources are shared across regional political boundaries.
4.8.5 Can the Global Multilateral Benefit-Sharing Mechanism provide a solution?
As discussed under Chapter Two above, Article 10 of the Nagoya Protocol makes provision for the establishment of a global multilateral benefit-sharing mechanism, to deal with certain transboundary situations. The second meeting of the Intergovernmental Committee for the Nagoya Protocol has, however, revealed that there is no common understanding among the CBD Parties on the modalities of such a mechanism; nor is there agreement on whether in fact such mechanism is necessary. Considering that Article 10 already dictates that all benefits shared through the global multilateral benefit-sharing mechanism (if such mechanism is established) are to be directed towards the global conservation of biological diversity and sustainable use of its components, it would appear that the provisions of the Nagoya Protocol relating to such mechanism differs substantially from the general trend of the provisions of the Nagoya Protocol, which provide flexibility regarding how benefit-sharing occurs and where benefits are directed.
It is thus submitted that the use of a global multilateral benefit-sharing mechanism to address benefit-sharing in respect of transboundary resources/knowledge would constitute an unacceptable intrusion on the sovereignty of Parties to the Protocol. It is for this reason, coupled with the fact that there is likely to be no common understanding among Parties pertaining to the establishment and modalities of such a mechanism for a long while yet, that it is argued that the global multilateral benefit-sharing mechanism will not effectively facilitate benefit-sharing in transboundary cases. It is suggested that this issue would instead be best addressed at regional level among Parties.
4.8.6 Common Regional ABS Policies
Common regional policies should ideally govern the sharing of benefits arising from the use of transboundary genetic resources and traditional knowledge relating thereto. However, from a practical perspective, the San-Hoodia case has shown that the complexity and diversity of legal and institutional mechanisms across countries, as well as the cross-cutting nature of traditional knowledge, conservation, intellectual property and benefit-sharing, makes it difficult for
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governments to adequately streamline policies.510 From a South African perspective, although the Nagoya Protocol calls for cooperation in respect of transboundary genetic resources and traditional knowledge, South Africa’s ABS legislation does not provide for such cooperation with neighboring countries. It must be noted, however, that the Nagoya Protocol is not yet in force and therefore does not yet impose any legal obligations on South Africa. Nevertheless, it would appear that the South African government is now working on this issue and aims to conclude bilateral agreements with regards to certain species including Hoodia by 2014. 511 In cases where the holders of traditional knowledge reside in various countries and genetic resources straddle political borders, it is essential that governments effectively co-operate and communicate with one another. There should be development of common policy approaches toward benefit-sharing and the establishment of joint strategies to enhance the promotion and protection of indigenous communities and their traditional knowledge.512 Such policies should be as specific as possible regarding PIC procedures and the nature and disbursement of expected benefits. Furthermore, such policies must ideally recognize and work in a meaningful manner together with indigenous and customary approaches.513