Commonwealth Public Inquiry into Access to Biological Resources in Commonwealth Areas

John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157

Appendix 6: Common Policy Guidelines for Participating Botanic Gardens on Access to Genetic Resources and Benefit Sharing

PREAMBLE¹

The botanic gardens, subscribing to these common policy guidelines,

Recognising the vital role of botanic gardens world wide in conservation, research and education;

Affirming their commitment to cooperate fairly and equitably with Stakeholders for the benefit of humankind and the conservation and sustainable use of biological diversity;

Recognising the sovereign rights of States over their own biological resources and the authority of national governments to determine access to genetic resources, subject to national legislation;

Acknowledging the interests of other Stakeholders, including Indigenous and local communities and farmers, in biological resources and associated information;

Determined to honour the letter and spirit of the Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and other international, regional, national and sub-national laws and policies concerning biodiversity; and Committed to honouring the terms and conditions under which they have acquired biological resources in the past;

Committed to honouring the terms and conditions under which they have acquired biological resources in the past;

have agreed as follows:

SECTION 1 - OBJECTIVES

The objectives are:

to ensure that the activities of the Participating Gardens involving access to genetic resources are consistent with the provisions of the Convention on International Trade in Endangered Species, the Convention on Biological Diversity and other international, regional, national and sub-national laws and policies concerning biodiversity;
to promote cooperation between botanic gardens, individuals, organisations, groups, and other Stakeholders dealing with genetic resources;
to establish conditions that facilitate access by others to the genetic resources within the collections held by the Participating Gardens and that may help each Participating Garden to access the genetic resources worldwide, whether found in in situ or ex situ conditions;
to promote the fair and equitable sharing of the benefits arising from the use of genetic resources, their progeny and derivatives, with the country of origin that provided the genetic resources and with other Stakeholders, as appropriate. The benefits to be shared arise both from the use of genetic resources, their progeny and derivatives, by the Participating Gardens and from the use by others of genetic resources, their progeny and derivatives, provided by Participating Gardens; and
to encourage other botanic gardens to become Participating Gardens and follow a harmonised system of access to genetic resources and benefit sharing.

SECTION 2 - DEFINITIONS

In this document, the following terms have the following meanings:

Accession means a sample or specimen of biological material held in a botanic garden or herbarium;

Access to genetic resources means the ability to acquire and use genetic resources; Acquisition means obtaining possession of a material or resource, through collection, receipt or other means;

Benefit sharing means sharing the benefits arising from the use, whether commercial or not, of genetic resources, their progeny and derivatives;

Biological material includes, but is not limited to, plants, plant parts or propagation material (such as seeds, cuttings, roots, bulbs, corms or leaves), fungi or other fungal material, and any other material of plant, animal, fungal, microbial or other origin and the genetic resources contained therein;

Biological resources include, but are not limited to, organisms or parts thereof, populations or any biotic component of ecosystems of actual or potential value, including genetic resources;

Botanic garden means, but is not limited to, an institution holding collections of documented and living plant accessions for the purposes of scientific research, conservation, display and education. For the purposes of this document, the term 'botanic garden' includes herbarium;

Commercialisation means the use or exploitation of genetic resources, their progeny or derivatives, with the object of, or resulting in, financial gain, and includes but is not limited to the following activities: sale, applying for, obtaining or transferring intellectual property rights or other tangible or intangible rights by sale or licence or in any other manner, commencement of product development, conducting market research, and seeking pre-market approval;

Country of origin of genetic resources means the country which possesses those genetic resources in in situ conditions;

Derivatives include, but are not limited to, modified or unmodified extracts and any compounds or chemical structures based on or derived from genetic resources and their progeny, including analogues;

Ex situ conservation means the conservation of components of biological diversity outside their natural habitats;

Genetic resources mean any material of plant, animal, fungal, microbial or other origin containing functional units of heredity of actual or potential value;

Herbarium means a reference collection of preserved and documented plant specimens, including those that are dried and pressed and those that are preserved in liquid;

In situ conditions mean conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties;

In situ conservation means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties;

Material acquisition agreement means an agreement between two or more organisations or individuals setting out the terms and conditions under which certain biological resources are acquired. A material acquisition agreement is a type of material transfer agreement;

Material supply agreement means an agreement between two or more organisations or individuals setting out the terms and conditions under which certain biological resources are supplied. A material supply agreement is a type of material transfer agreement;

Material transfer agreement means an agreement between two or more organisations or individuals setting out the terms under which one party will transfer biological materials, which may contain genetic resources, to or from another. Material transfer agreements can take many forms, ranging from the simple exchange of letters to specific contracts containing standard clauses such as the model material acquisition agreement and model material supply agreement set out in Annexes 2 and 3 hereto, respectively. Both material acquisition agreements and material supply agreements are types of material transfer agreements;

Model material acquisition agreement means the model material acquisition agreement developed to implement these Common Policy Guidelines, a pro forma of which is attached hereto as Annex 2;

Model material supply agreement means the model material supply agreement developed to implement these Common Policy Guidelines, a pro forma of which is attached hereto as Annex 3;

Participating Gardens means those botanic gardens listed in Annex 1 hereto which subscribe to the principles set out in this document and which have agreed to implement these Common Policy Guidelines;

Prior informed consent means the consent of the government and other Stakeholders which must be obtained prior to access to genetic resources and based on full disclosure of information, such as the intended use of the resources;

Provider means any individual or organisation, whether governmental or non- governmental, that provides genetic resources, their progeny or derivatives to a Participating Garden;

Recipient means any individual or organisation, whether governmental or non- governmental, that acquires genetic resources, their progeny or derivatives from a Participating Garden with its consent;

Stakeholder means an individual, organisation or group whether formal or informal, affected by, or with an interest in, the activities relating to the acquisition, use or supply of genetic resources, their progeny or derivatives. Stakeholders involved in conservation and the granting of collecting permits and prior informed consent for access may include relevant departments of government, local authorities, private individuals such as landowners, Indigenous peoples, local communities, farmers and non-governmental organisations. Stakeholders such as these are often described in law relating to access and benefit sharing;

Tracking means maintaining records of the location of specimens of genetic resources, their progeny and derivatives, following their distribution within an organisation or their supply to other organisations.

SECTION 3 - PRINCIPLES

Participating Gardens subscribing to these Common Policy Guidelines will, as far as possible and as appropriate:

obtain prior informed consent for the acquisition of genetic resources from in situ conditions from the government of the country of origin and other Stakeholders;
obtain the prior informed consent for the acquisition of genetic resources from ex situ conditions from the body governing the ex situ collection concerned, and such other consents as that body indicates are required;
acquire and supply genetic resources, their progeny or derivatives under material acquisition and material supply agreements which satisfy these principles;
maintain records and mechanisms to track the acquisition and supply of genetic resources, their progeny and derivatives, and the benefits that arise from their use; and
share the benefits arising from the use of genetic resources, their progeny and derivatives fairly and equitably with the country of origin and other Stakeholders.

SECTION 4 - ACQUISITION

4.1 PRIOR INFORMED CONSENT

4.1.1 When it collects or otherwise gains access to genetic resources, each Participating Garden will abide by applicable law and best practice. When obtaining access to genetic resources from in situ conditions, each Participating Garden will obtain the prior informed consent of the government of the country of origin, in accordance with its applicable legislation, and will make reasonable and sincere efforts to obtain the prior informed consent of other Stakeholders, as appropriate. When obtaining access to genetic resources from ex situ conditions, each Participating Garden will obtain the prior informed consent of the body governing the ex situ collection, and such other consents as the body governing the ex situ collection requires.

4.2 PROVIDERS

4.2.1 The Participating Gardens recognise the importance of ensuring that Providers of genetic resources subscribe to the principles set out in Section 3 of this document. Each Participating Garden may accept genetic resources from any Provider which subscribes to these principles, and will endeavour, where practicable, to obtain from Providers confirmation of their acceptance of these principles, whether by signature of a material acquisition agreement or by some other means.

4.3 MATERIAL ACQUISITION AGREEMENTS

4.3.1 When obtaining access to genetic resources, each Participating Garden will make reasonable and sincere efforts to clarify the respective roles, rights and responsibilities of the Participating Garden, the country of origin and relevant Stakeholders in activities involving the utilisation of genetic resources.

4.3.2 When obtaining access to genetic resources from in situ conditions, each Participating Garden will:

where required, in accordance with applicable law, obtain, in writing, the prior informed consent of the government of the country of origin; and will make reasonable and sincere efforts to:
obtain and record the prior informed consent of other Stakeholders, as appropriate, for access to and use of the genetic resources concerned and associated knowledge;
ensure that any collection, import, export and other handling of the genetic resources has been in accordance with all applicable law; and
clarify, in writing, the terms and conditions under which the materials are acquired and can subsequently be used, particularly whether the materials, their progeny or derivatives may be supplied to third parties and/or commercialised.

4.3.3 When obtaining access to genetic resources from documented ex situ collections, each Participating Garden will:

obtain, in writing, prior informed consent from the officer authorised to agree terms of access on behalf of the ex situ collection, and such other consents required as indicated by that officer for access to the genetic resources concerned and for their use;
and will make reasonable and sincere efforts to:
obtain from the authorised officer of the ex situ collection a written undertaking that the genetic resources were acquired and are being supplied in accordance with all applicable law and that the ex situ collection is entitled to supply them to the Participating Garden;
ensure that the export of the genetic resources, their progeny or derivatives, from the country where the ex situ collection providing them is based, and import to the country where the Participating Garden is based, are in accordance with all applicable law; and
clarify, in writing, the terms and conditions under which the materials are acquired and can subsequently be used, particularly whether the materials, their progeny or derivatives may be supplied to third parties and/or commercialised.

4.3.4 When obtaining access to genetic resources from ex situ conditions other than those in section 4.3.3. above, for instance from commercial sources, each Participating Garden will ensure that the acquisition conforms with all applicable law, and, if appropriate, will make reasonable and sincere efforts to ascertain from the Provider that the materials were obtained in accordance with the Convention on Biological Diversity.

4.3.5 The Participating Gardens recognise the need to acquire genetic resources under material acquisition agreements. Where a Provider does not use a material transfer agreement, or where a Provider's material transfer agreement or the collecting permits currently in use in a particular country do not satisfy the requirements set out in Section 4.3.2 and Section 4.3.3, a Participating Garden may propose to the Provider that they enter into the model material acquisition agreement or another form of material acquisition agreement which contains those requirements.

SECTION 5 - RECORDS, TRACKING AND MANAGEMENT

5.1 RECORDS

5.1.1 Each Participating Garden acquiring genetic resources will make reasonable and sincere efforts to record and maintain data on their acquisition, including information on the Provider; country of origin; collector; collection date and number; accession number; taxon; prior informed consent and conditions of use (for example as contained in permits and/or material acquisition agreements); and other relevant data associated with the acquisition of accessions in its collections in order to be able to implement these Common Policy Guidelines.

5.1.2 Each Participating Garden will make reasonable and sincere efforts to record and maintain information concerning the use of genetic resources, their progeny and derivatives, by that Participating Garden, and the benefits to that Participating Garden arising from such use.

5.1.3 Each Participating Garden will make reasonable and sincere efforts to record and maintain data on the supply of genetic resources, their progeny and derivatives, including information on the Recipient and the terms of access and benefit sharing under which they were supplied. When providing genetic resources, their progeny and derivatives to a Recipient, each Participating Garden will also provide relevant data on their acquisition to the Recipient, as described in Section 5.1.1, particularly information on prior informed consent and conditions of use.

5.2 TRACKING

5.2.1 In order to be able to fulfil its commitments under these Common Policy Guidelines now and in the future, each Participating Garden will develop and implement appropriate mechanisms to track the acquisition of genetic resources, the different uses of genetic resources, their progeny and derivatives held in its collections, their supply to Recipients, and the benefits that arise from their use.

5.3 MANAGEMENT

5.3.1 Each Participating Garden will establish systems of staff management and individual staff responsibilities for the implementation of and compliance with these Common Policy Guidelines.

5.3.2 Each Participating Garden will identify the members of its staff authorised to agree, on its behalf, the terms of access and benefit sharing associated with the acquisition and supply of genetic resources, their progeny and derivatives.

SECTION 6 - SUPPLY

6.1 Supply of Genetic Resources

6.1.1 Each Participating Garden may supply genetic resources, their progeny or derivatives, to other Participating Gardens and third parties for conservation, research, public display, education and other purposes.

6.1.2 At the time of supplying genetic resources, their progeny or derivatives, each Participating Garden will clarify with the Recipient whether the supply is for commercial or for non-commercial purposes.

6.1.3 When supplying genetic resources, their progeny or derivatives, each Participating Garden will honour any terms and conditions to which it committed when acquiring the genetic resources, such as any conditions set out in collecting permits or material acquisition agreements.

6.1.4 To the extent possible, when supplying genetic resources, their progeny or derivatives, each Participating Garden will treat genetic resources acquired prior to the entry into force of the Convention on Biological Diversity and those acquired after its entry into force in the same manner.

6.2 Recipients

6.2.1 The Participating Gardens recognise the importance of ensuring that Recipients of genetic resources, their progeny and derivatives, subscribe to the principles set out in Section 3 of this document. Each Participating Garden may supply genetic resources to any Recipient which subscribes to these principles, and will endeavour, where practicable, to obtain from Recipients confirmation of their acceptance of these principles, whether by signature of a material supply agreement or by some other means.

6.3 Material Supply Agreements

6.3.1 When supplying genetic resources, their progeny or derivatives, each Participating Garden will seek to use the model material supply agreement, or another material supply agreement which obliges each Recipient:

to share benefits arising from its use of the genetic resources, their progeny and derivatives, fairly and equitably with the Participating Garden providing them, who will then share them fairly and equitably with the country of origin and other Stakeholders, as appropriate, as set out in Section 7;
not to commercialise the genetic resources, their progeny or derivatives, without the explicit consent of the Participating Garden providing them; and
not to pass the genetic resources, their progeny or derivatives, on to third parties without ensuring that the third parties enter into written agreements containing terms that are no less restrictive.

SECTION 7 - BENEFIT SHARING

7.1 Commitment to Share Benefits

7.1.1 Each Participating Garden will make reasonable and sincere efforts to share the benefits arising from the use of genetic resources, their progeny and derivatives, fairly and equitably with the country of origin and other Stakeholders, as appropriate.

7.1.2 To the extent possible, each Participating Garden will share the benefits arising from the use of materials acquired prior to and after the entry into force of the Convention on Biological Diversity in the same manner.

7.2 Benefits

7.2.1 The object of sharing benefits is to achieve fairness and equity and to create incentives and provide resources for the conservation of biological diversity and the sustainable use of its components.

7.2.2 Benefits which Participating Gardens will share, depending upon what is fair and equitable in the circumstances, including commitments made in material acquisition and supply agreements, may include:

taxonomic, biochemical, ecological, horticultural and other information and data, through research results, publications and educational materials;
access to collections and databases;
benefits in kind, such as augmentation of national collections in the country of origin and support of community development activities;
the transfer of technology such as hardware, software and know-how;
training in science, in situ and ex situ conservation and management, information technology and management and administration of access and benefit sharing;
institutional development, strengthening and management;
joint research and development, through collaboration in training and research programs, participation in product development, joint ventures and co-authorship of publications; and,
in the case of commercialisation, also monetary benefits such as royalties.

SECTION 8 - IMPLEMENTATION

8.1 Progressive Implementation

8.1.1 The Participating Gardens will need to build their respective human and institutional capacities in order to be able to implement these Common Policy Guidelines fully. Therefore, each will develop measures such as procedural manuals and instructions for staff, record keeping systems and mechanisms for sharing benefits.

8.2 Feedback and Development

8.2.1 Each Participating Garden recognises that this document will need to be revised periodically in order to reflect changes in international, national and other applicable law and acknowledged best practice. The Participating Gardens are committed to the continual development of these Common Policy Guidelines in response to feedback and suggestions.

8.3 Broadening Participation

8.3.1 The Participating Gardens subscribing to these Common Policy Guidelines are committed to working with the broader botanic gardens community and with individuals, organisations and groups dealing with genetic resources, in order to develop a harmonised system for access to genetic resources and benefit sharing.

MODEL MATERIAL ACQUISITION AGREEMENT

Note: This model agreement has been prepared for illustrative purposes in connection with the Botanic Garden Pilot Project on Access to Genetic Resources and Benefit sharing. The language of this draft agreement is appropriate to certain circumstances and to English law only. Consequently, no person should rely on the language of this draft without first consulting his or her own legal adviser.

MODEL MATERIAL ACQUISITION AGREEMENT BETWEEN
[PARTNER INSTITUTION]
AND
[PARTICIPATING GARDEN]

An AGREEMENT made on the [ ] day of [ ] Two thousand between [Participating Garden] ([PG]) and [Partner Institution] ([Partner]).

WHEREAS:

[PG] is a [corporate description], whose mission is [mission statement];

In pursuit of this mission, [PG] exchanges Biological Material with other research institutes worldwide;

In its work, [PG] intends to honour the letter and spirit of the 1992 Convention on Biological Diversity, the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (including the relevant implementing European Community Regulations), and other regional, national and subnational laws and policies concerning biodiversity;

[PG] and [Partner] may establish a joint collecting and conservation program and may instigate collaborative research projects relating to the collection, study and conservation of plant biodiversity; and

[Partner] is interested in providing [PG] with certain Biological Materials;

NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:

1. In this Agreement the following expressions shall have the following meanings:

1.1 'Biological material' includes, but is not limited to, plants, plant parts or propagation material (such as seeds, cuttings, roots, bulbs, corms or leaves), fungi or other fungal material, and any other material of plant, animal, fungal, microbial or other origin and the genetic resources contained therein;

1.2 'Commercialise' and 'Commercialisation' means the use or exploitation of genetic resources, their progeny or Derivatives, with the object of, or resulting in, financial gain, and includes but is not limited to the following activities: sale, applying for, obtaining or transferring intellectual property rights or other tangible or intangible rights by sale or licence or in any other manner, commencement of product development, conducting market research, and seeking pre-market approval;

1.3 'Derivatives' include, but are not limited to, modified or unmodified extracts and any compounds or chemical structures based on or derived from genetic resources and their progeny, including analogues;

1.4 'Genetic Resources' mean any material of plant, animal, fungal, microbial or other origin containing functional units of heredity of actual or potential value;

1.5 'Material' shall mean the plant, animal, microbial or fungal biological material transferred from time to time under this Agreement;

1.6 'Third Party' shall mean any person other than [PG] and [Partner].

2.1 In consideration of the undertaking by [PG] in clause 3.1, below, [Partner] will transfer to [PG] the Material listed in each 'Notification of Material Transferred under the Material Acquisition Agreement between [Partner] and the [PG] (the 'Notification of Transfer') to be itemised and agreed by the parties for each material transfer under this Agreement. A pro forma copy of the Notification of Transfer is attached as Appendix A hereto.

2.2 The Material referred to in clause 2.1 will be transferred pursuant to the terms of this Agreement.

2.3 The signature of [Partner] on any Notification of Transfer will confirm firstly that [Partner] is satisfied that best efforts have been made by [PG] and/or by [Partner], as appropriate, to obtain all necessary permits, prior informed consents and licenses in connection with the acquisition by [PG] of the Material and secondly that [Partner] is authorised to acquire and supply the Material to [PG].

3.1 [PG] undertakes, where reasonably practicable, to provide [Partner] with a fair and equitable share of any benefits obtained by [PG] resulting from the use of any Genetic Resources, their progeny or Derivatives, including the results of processing, monitoring, research, development or other use of such Genetic Resources.

3.2 Research publications by [PG] resulting from the use of any Genetic Resources, their progeny or Derivatives, will acknowledge [Partner] as the source of such Genetic Resources. 4.1 In order to justify investment in the collaboration established by this Agreement,

[PG] must ensure its future use of the Material. Consequently, subject to the terms of clause 4.2, below, [PG] shall own the Material and may use it for purposes consistent with its not- for-profit mandate.

4.2 [PG] will not Commercialise any Genetic Resources, their progeny or Derivatives, without having obtained the written permission of [Partner] prior to such Commercialisation. Any such Commercialisation to which [Partner] agrees will be subject to a separate agreement with [Partner] consistent with [PG]'s policy on access to genetic resources and benefit sharing.

4.3 [PG] may supply any Genetic Resources, their progeny or Derivatives, to a Third Party and will use its best efforts to ensure that such Third Party has entered into a written agreement with [PG] containing conditions no less restrictive than those contained in this Agreement, including the conditions on benefit sharing, publication, Commercialisation and supply of Genetic Resources, their progeny or Derivatives, and providing that such Third Party shall not supply such Genetic Resources, their progeny or Derivatives, to any other Third Party (a 'Subsequent Recipient') unless such Subsequent Recipient has entered into a legally binding written agreement containing conditions no less restrictive than those contained in this Agreement, including the conditions on benefit sharing, publication, Commercialisation and supply of Genetic Resources, their progeny or Derivatives.

5.1 This Agreement shall be in effect from [date] and shall extend for a term of [ten (10)] years after such date unless the parties reach prior agreement to new terms. The obligations and rights contained in Clauses 1, 2.2, 2.3, 3, 4 and 5 herein shall survive the expiration or other termination of this Agreement.

5.2 Notwithstanding clause 5.1 above, either party to this Agreement may give six months notice to the other party to terminate this Agreement.

5.3 Neither party shall be liable to the other party for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including, without limitation, any of the following: Act of God, governmental act, war, fire, flood, explosion, civil commotion or industrial disputes of a Third Party or impossibility of obtaining gas or electricity or materials. Subject to the affected party promptly notifying the other party in writing of the cause and the likely duration of the cause, the performance of the affected party's obligations, to the extent affected by the cause, shall be suspended during the period the cause persists.

5.4 Any dispute, difference or question between the parties arising under this Agreement shall be referred to an arbitrator to be agreed between the parties or, in default of agreement [insert appropriate arbitration provisions].

5.5 Any notice or other document to be served under this Agreement may be delivered or sent by prepaid air mail or by fax to the party to be served at the below address or at such other address as it may have notified to the other party in accordance with this clause. Any notice shall be marked for the attention of the person and at the address indicated below:

[Participating Garden]:	Name:	[Insert name]
	Position:	[Insert title]
	Address:	[Insert address]
[Partner Institution]:	Name:	[Insert name]
	Position:	[Insert title]
	Address:	[Insert address]

Any notice or document shall be deemed to have been served (a) if delivered, at the time of delivery; or (b) if posted by air mail, at 10:00 a.m. on the fifth business day after it was put in the post; or (c) if sent by fax at the expiration of two hours after the time of despatch if despatched before 3:00 p.m. (local time of destination) or at 10:00 a.m. (local time) on the next business day after despatch in any other case.

5.6 The provisions of this Agreement constitute the entire Agreement between the parties relating to the subject matter and the parties do not make any representations or warranties except those contained in this Agreement. The Agreement shall not be considered extended, cancelled or amended in any respect unless done so in writing signed on behalf of the parties hereto.

5.7 This Agreement is personal to the parties and none of the rights or the obligations under this Agreement may be assigned or transferred without the prior written consent of the other party.

5.8 The provisions contained in each clause and sub-clause of this Agreement shall be enforceable independently of each of the others and its validity shall not be affected if any of the others is invalid. If any of these provisions is void and would be valid if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid.

5.9 Nothing contained in this Agreement shall constitute a partnership between [PG] and [Partner] or constitute either of them the agent of the other.

5.10 This Agreement is governed by and shall be construed in accordance with [insert appropriate nationality] law.

5.11 This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement.

AS WITNESS the hands of the duly authorised representatives of the parties hereto.

SIGNED BY:
for and on behalf of [Partner]
Name:
Title:
Date:

SIGNED BY:
for and on behalf of [Participating Garden]
Name:
Title:
Date:

APPLICATION FOR THE SUPPLY OF PLANT MATERIAL FROM
THE AUSTRALIAN NATIONAL BOTANIC GARDENS

I,.......................................................................................................(full name and position) being the legally authorised person representing .................................................................. .......................................................................................................................................... ........................................................................(name and address of institution or company)

agree that the plant material, including essentially derived* plant material or substances, supplied by the Australian National Botanic Gardens and listed below will not be supplied to any person or party not specifically named in this agreement and will not be used for any purpose other than that stated in this agreement. I will acknowledge the ANBG as the source of the material in all publications relating to its use and I shall supply a copy of these publications to the ANBG Library within 12 months of publication. I accept all responsibility for the security of the plant material and any damages resulting from the use, loss or escape of the material. I also accept responsibility and costs for compliance with any relevant laws, regulations , conventions or treaties. Any departure from these conditions will be subject to further negotiation and the agreement of ANBG. I also indemnify the Commonwealth of Australia, the Director of National Parks and Wildlife and servants and agents, against any liability and costs whatsoever arising out of any act of negligence of myself or servants or agents in the course of activities authorised by the permit granted in response to this application.

The plant material required is:

The purpose(s) for the which the material is requested is/are:

(Attach and initial additional pages if necessary)

Signed. .......................................................................
Date ..............................................

Witnessed by .............................................................
Date ..............................................

Name of Witness ...........................................................................................................

* 'essentially derived' means that the material or substance is determined by the expression of one or more genes or other heritable determinants originating from the plant material supplied under this agreement.

Note: The above material transfer agreement is preceded by a letter to the applicant as follows:

Dear ............................................................

Thank you for your request of [date] for plant material from the Australian National Botanic Gardens (ANBG).

ANBG will only supply material to individuals or institutions that are prepared to enter into a formal agreement describing the purpose for which the material is required. Plant material will only be supplied if the stated purpose is consistent with the aims of ANBG, and normally material is only supplied for research or educational purposes. Material cannot be supplied if it may compromise research being conducted at ANBG or the Centre for Plant Biodiversity Research.

In addition, where material is requested for use outside Australia, it can only be supplied in compliance with the Convention on International Trade in Endangered Species (CITES). Also ANBG will only supply to countries which have ratified the international Convention on Biological Diversity. The Convention affirms national sovereignty over genetic resources and establishes a framework for the fair and equitable sharing of the benefits arising from the development of the world's genetic resources. The Convention also provides that access to genetic resources should be subject to prior informed consent and shall be on mutually agreed terms (see Attachment A). The mechanisms by which Australia will give effect to these provisions are currently being developed. Until the mechanisms for the supply of Australian genetic material are formalised Australian government organisations are adopting a conservative approach.

Accordingly, the ANBG has developed interim measures. Those wishing to obtain plant material from the Gardens are required to provide a full description of the purpose for which the material is required and sign an agreement accepting certain conditions. This forms part of the application form which is attached. Charges may be incurred depending on the use to which the material will be put. Some general information on ANBG policy is enclosed (Attachment B) but specific charges may need to be negotiated. Phytosanitary expenses and other permit fees are always the responsibility of the applicant. Approval for export may also require a separate permit under the terms of the Wildlife Protection (Regulation of Exports and Imports)Act 1982.

If these requirements are acceptable to you please provide the information requested and acknowledge your acceptance of our terms and conditions on the enclosed form. This form must be returned to ANBG before we will process your request.

Yours sincerely,

Footnotes

An explanatory note is being developed to accompany these Common Policy Guidelines

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