In November 2010 the Conference of Parties to the Convention on Biological Diversity adopted the 'Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization'. The decision and the text of the protocol can be found at: cbd.int/decision/cop/?id=12267
The protocol establishes a legally-binding framework for biotechnology researchers and other scientists to gain access to genetic resources. It also establishes a framework for researchers and developers to share any benefits from the use of genetic resources, or traditional knowledge associated with those resources, with the provider country.
The National Biodiscovery Forum's Nagoya Protocol workshop was part of the Australian Government's consultation process to inform its decision on signature and possible ratification of the protocol. Two short presentations on the protocol were made, leading into a panel discussion with workshop participants.
Ben Phillips, Department of Sustainability, Environment, Water, Population and Communities
Why should we sign the Nagoya Protocol?
There are a number of reasons why Australia might consider taking this opportunity to sign the protocol:
it confirms to the international community and global industry that Australia is committed to taking the next steps
it supports the pragmatic approach we took in negotiating the protocol
it supports our on-going role in negotiations about how this important international instrument will be implemented internationally and allows us to continue to reflect the issues that Australia's industry and research community have raised with us
it assists in raising awareness of the protocol's requirements and encourages industry, researchers and the Indigenous community participation in developing measures to advantage Australia in relation to the protocol.
Previous consultation across industry and the research community has shown general support for the development of an international protocol which:
provides legal certainty for researchers and industry over their use of genetic resources
is simple and cost-effective to administer
provides a simple system to provide access to genetic resources for research and development
is consistent with existing Australian legislation.
What does it mean if we sign and ratify the protocol?
Signing the protocol does not make Australia a party to the protocol, and it does not make the protocol legally binding in Australia.
Our signature indicates that Australia will seriously consider being bound by the terms of the protocol, will not take actions to undermine the objectives of the protocol, and undertakes to develop the means by which the obligations under the protocol could be put into effect in Australia.
Ratification of the Nagoya Protocol would require Australia to meet certain key obligations including:
The designation of at least one competent national authority (Art 13).
Measures to provide that genetic resources and traditional knowledge associated with genetic resources used in scientific research and development have been accessed in accordance with the domestic requirements of the provider country (Art 15 and 16).
The designation of at least one checkpoint to monitor the use of genetic resources in Australia (Art 17).
Jason Field, member of the Indigenous Advisory Committee to the Minister for the Environment
The Nagoya Protocol expands on Article 8j of the Convention on Biological Diversity and more clearly explains the obligations of providers and users of genetic resources in relation to any use of traditional knowledge.
The protocol makes it clear that Indigenous people and local communities are rights-holders not just stakeholders. This means they are entitled to secure prior informed consent for the use of their knowledge and to negotiate a fair and equitable share of any benefits obtained on mutually agreed terms.
This is a welcome advance from the perspective of Indigenous people, however, there are a number of limitations:
the protocol does not clarify issues associated with the customary use of genetic resources
the key provisions dealing with Indigenous people's interests are to be implemented by national law
the text of the protocol relating to Indigeneous people is highly qualified by the use of terms such as 'as appropriate'.
Indigenous peoples' representatives should participate in the development of national and international guidelines and standards in the protocol's implementation
A significant challenge for Indigenous people is to take up the challenge to foster and benefit from their traditional knowledge. Building capacity to do this will be essential.
Following the presentations, Mark Taylor from Parks Australia, Department of Sustainability, Environment, Water, Population and Communities, led a discussion on the protocol. Issues raised included:
How to manage genetic resources which were accessed on the basis of traditional knowledge but not from the holders of that knowledge?
This situation is anticipated in the Australian Government's access and benefit-sharing legislation (Part 8A of the EPBC Regulations) which provides for benefits to flow to the legal managers of the genetic resource.
How does Australian access and benefit-sharing legislation apply to private as well as public land?
State, Territory and Australian Government legislation varies in this regard. Current Queensland legislation applies only to Crown land. Northern Territory legislation covers all land tenures and ensures the property rights of private landowners are protected and supported.
How does intellectual property law relate to the use of genetic resources?
The pros and cons of using patents to protect rights over inventions involving genetic resources was discussed. In some circumstances, including where traditional knowledge is used, other forms of intellectual property protection such as trade secrets,might be preferred over patents.
In patent applications it is often sufficient to disclose the use of traditional knowledge but not needing disclose contextual cultural information.
The use of Australian Institute of Aboriginal and Torres Strait Islander Studies consultation guidelines and research protocols were suggested in working with Indigenous communities.
How would transaction costs and legal certainty be supported (particularly for ex-situ biological collections, such as museums, herbaria and botanic gardens, and other non-commercial research)?
Australian Government legislation provides for institutions to be accredited so that the need for permits and agreements for each collection is removed. This might be a useful model in the implementation of the protocol.
How Australia's experience with access and benefit-sharing legislation can help in the implementation of the protocol?
Australia's experience provides a comparative advantage over countries with similar levels of biodiversity and countries with comparable research and development infrastructure. This advantage could be reduced if Australia did not sign and ratify the Nagoya Protocol in a timely way.