A SUBMISSION TO THE DEPARTMENT OF SUSTAINABILITY, ENVIRONMENT, WATER, POPULATION AND COMMUNITIES SHOULD AUSTRALIA SIGN THE NAGOYA PROTOCOL? Achmad Gusman Siswandi PhD Fellow The Australian National University College of Law The Australian National University College of Law Building 5, Fellows Road Canberra ACT 0200 Australia T: +61 2 6125 0810 E: gusman.siswandi@law.anu.edu.au
CONTENTS Executive Summary 2 1. The Nagoya Protocol: an overview 4 2. Australia: a mega-biodiversity and a developed country 9 3. Australia: one of the pioneers in the ABS legislation 12 Conclusion 15 1
EXECUTIVE SUMMARY I am a PhD student at the Australian National University (ANU) College of Law and the topic of my thesis is Developing a Legal Framework for Marine Bioprospecting in Indonesia. I am also a lecturer at the Padjadjaran University Faculty of Law in Bandung, Indonesia, and currently taking a leave for my study at the ANU. I obtained my law degree from the Padjadjaran University in 1998 and my master s degree from the University College London in 2005. My area of interest is Public International Law, with particular interests in the Law of the Sea, Intellectual Property Law, and International Environmental Law. I have been building my interests on the legal issues related to genetic resources, traditional knowledge and traditional cultural expressions since 2002. Since 2004, I decided to concentrate more on the legal issues arising from the utilization of marine genetic resources. When I did my master s degree in 2004, I wrote a dissertation entitled International Law and Marine Genetic Resources: Challenges for Developing Countries. Then, for my PhD thesis, I decided to narrow down my research to the legal issues arising from the utilization of marine genetic resources within the Indonesian context. One of the chapters of my thesis will discuss the current international instruments related to the utilization of genetic resources, including the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (the Nagoya Protocol), which is the central issue in this submission. This submission argues that Australia needs to sign the Nagoya Protocol for two reasons. Firstly, Australia is one of the world s mega-biodiversity countries, and, 2
at the same time, a developed nation that has tremendous potential in biodiversityrelated industries. Being a signatory to important international instruments in this field such as the Nagoya Protocol will ensure Australia s commitment in utilizing biodiversity sustainably. Secondly, the Nagoya Protocol could only be effectively implemented with the support of domestic legislation. Signing the Nagoya Protocol would be a first step for Australia to implement the provisions of the Nagoya Protocol in accordance with its national interests, and, at the same time, improving the current ABS mechanism which is already in place. This submission is divided into three parts. In the first part, I will present an overview of the Nagoya Protocol and analyse some of its important provisions. In the second part, I will elaborate and assess the Australia s experiences in dealing with the utilisation of genetic resources so far. In the third part, I will analyse the current state of Australian legislation in the field of ABS and how the Nagoya Protocol will assist Australia to build a better system of ABS. I would like to thank Dr Matthew Rimmer of the ANU College of Law for his valuable comments and suggestions. All remaining shortcomings in this submission are entirely mine. 3
1. The Nagoya Protocol: an overview The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity 1 (the Nagoya Protocol) in 2010 was preceded by a long history that had paved a long and winding road for the Protocol itself. The history began from the adoption of the 1992 United Nations Convention on Biological Diversity 2 (CBD) and one of the objectives of this Convention is the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. Pursuant to the CBD, every State has sovereign rights over their natural resources, thus the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. The access and benefit sharing mechanism, or also known as ABS, with regard to the utilization of genetic resources was further elaborated in the Bonn Guidelines on access to genetic resources and the fair and equitable sharing of the benefits arising from their utilisation (the Bonn Guidelines). In general, the Bonn Guidelines aim to provide assistance to State Parties in implementing the ABS regime under the CBD by identifying, for example, steps in the ABS process. Nevertheless, as mirrored in the 2002 Implementation Plan, a consensus adopted in the World Summit on Sustainable Development held in Johannesburg in 1 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, opened for signature 2 February 2011, UNEP/CBD/COP/DEC/X/1 of 29 October 2010 (not yet in force) ( Nagoya Protocol ). 2 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) ( Biodiversity Convention ). 4
2002, a specific international regime is still needed to address legal issues arising from ABS. For this purpose, the Working Group on ABS was established and had conducted a number of meetings to identify and to elaborate the elements of such an international regime. Since then, the Working Group had conducted nine meetings before producing a final text on the Nagoya Protocol to be adopted by the State Parties. The final text of the Nagoya Protocol was finally adopted in the early hours of Saturday, 30 October 2010. The Nagoya Protocol contains a number of essential elements to implement the objectives of the CBD, especially to implement the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. It provides that access to genetic resources for their utilisation shall be subject to the prior informed consent of the Party providing such resources. 3 The prior informed consent or approval and involvement of indigenous and local communities should also be taken into consideration in this regard. 4 To implement these provisions, each Party is required to take the necessary legislative, administrative or policy measures, including to provide for legal certainty of their domestic access and benefit-sharing legislation and also to establish clear rules and procedures in terms of mutually agreed terms. 5 In terms of benefit-sharing, the Nagoya Protocol specifies that benefits arising from the utilisation of genetic resources as well as subsequent applications and commercialisation shall be shared in a fair and equitable way with the Party providing 3 Nagoya Protocol art 6.1. 4 Ibid art 6.2. 5 Ibid art 6.3. 5
such resources. 6 This also applies to the utilisation of genetic resources held by indigenous and local communities, including their traditional knowledge. 7 In order to implement these provisions, again each Party is required to take appropriate legislative, administrative or policy measures. 8 Furthermore, the Nagoya Protocol obliges each Party to take appropriate, effective and proportionate legislative, administrative or policy measures in ensuring that genetic resources within its jurisdiction have been accessed in accordance with prior informed consent, mutually agreed terms, and domestic legislation or regulatory requirements of the other Party. 9 This provision also applies to access and benefitsharing for traditional knowledge associated with genetic resources. 10 In particular, the Nagoya Protocol also contains measures that should be taken by each Party to ensure compliance with mutually agreed terms. 11 These include encouraging providers and users of genetic resources as well as traditional knowledge associated with genetic resources to include dispute resolution provisions in mutually agreed terms. 12 In this regard, the Parties are obliged to ensure that an opportunity to seek recourse is available under their legal systems in cases of disputes arising from 6 Ibid art 5.1. 7 Ibid art 5.2 and 5.5. 8 Ibid art 5.3. 9 Ibid art 15. 10 Ibid art 16. 11 Ibid art 18. 12 Ibid art 18.1. 6
mutually agreed terms. 13 It also specifies several measures that must be taken to support compliance, including the designation of checkpoints. 14 The Nagoya Protocol can be regarded as a new chapter in the field of ABS. Nevertheless, it has not moved significantly further from the ABS principles and standards which have been stipulated under the CBD and the Bonn Guidelines. Most of the Nagoya Protocol s provisions require each Party to take appropriate legislative, administrative, or policy measures with a view to exercising their rights and obligations under the Protocol. This means that the effectiveness of the Ngoya Protocol would be largely determined by domestic laws pertaining to the utilisation of genetic resources. In other words, the important provisions under the Nagoya Protocol will not be able to work effectively if not supported by national legislation. In this context, Australia needs to consider becoming a signatory to the Nagoya Protocol to ensure its effective implementation in line with Australia s national interests. Corollary to this, there are two main reasons why Australia needs to sign the Nagoya Protocol. Firstly, Australia is one of the world s mega-biodiversity countries, and, at the same time, a developed nation that has tremendous potential in biodiversity-related industries. Being a signatory to important international instruments in this field such as the Nagoya Protocol will ensure Australia s commitment in utilizing biodiversity sustainably. Secondly, as mentioned above, the Nagoya Protocol could only be effectively implemented with the support of domestic legislation. Signing the Nagoya Protocol would be a first step for Australia to implement the provisions of the Nagoya 13 Ibid art 18.2. 14 Ibid art 17.1(a). 7
Protocol in accordance with its national interests, and, at the same time, improving the current ABS mechanism which is already in place. 8
2. Australia: a mega-biodiversity and a developed country Australia contains a diverse range of biogeographic regions and it is considered as one of the world s 12 megadiverse countries. 15 The Australia s biodiversity is also particularly unique as about 92% of higher plant species, 87% of mammal species, 93% of reptiles, 94% of frogs and 45% birds are endemic or only occur in Australia. 16 One of the important areas in biodiversity utilization is biotechnology, for instance the development of medicines derived from nature. In this regard, Australia is supported by the fact that it is the only mega-biodiversity countries which is a developed nation. The Australia s biotechnology has been growing steadily with activity across biotechnology fields including biomedicine, agricultural biotechnology, industrial biotechnology and environmental biotechnology. 17 In addition, the Government of Australia has been supportive in promoting the development of biotechnology. It has initiated a number of programs, including Backing Australia s Ability, which is a strategy that represents continuing public investment in the development of Australia s biotechnology industry. 18 At the State level, there have also been several relevant policies to support research and innovation in science and technology, such as Queensland s Smart State strategy. 19 15 Convention on Biological Diversity, Country Profile-Australia (2 August 2011) Convention on Biological Diversity <http://www.cbd.int/countries/profile.shtml?country=au#status>. 16 Ibid. 17 Sarah Laird, Catherine Monagle, Sam Johnston, Queensland Biodiscovery Collaboration The Griffith University AstraZeneca Partnership for Natural Product Discovery An Access and Benefit Sharing Case Study (United Nations University-Institute of Advanced Studies, 2008) 11. 18 19 Ibid. Ibid. 9
Marine bioprospecting has also been considered promising in Australia and recently, marine biodiversity has also been studied as a potential source for clean energy. The Commonwealth Scientific and Industrial Research Organisation (CSIRO), for example, has discovered that the production of biodiesel from algae could reduce greenhouse gas emissions, help to address future fuel shortages and create jobs in rural Australia. 20 Furthermore, microalgae offer additional benefits as they are diverse, pervasive, productive, and less competitive with other plants as a source of food for human consumption. 21 Thus, as a developed mega-biodiversity country coupled with enabling environment for biotechnology, 22 Australia possesses a significant position in the utilization of biodiversity, especially genetic resources. In addition, Australia has a number of experiences with regard to the application of the ABS regime, including the Griffith University and AstraZeneca partnership which was initiated in 1993 between the Queensland s Griffith University and Astra Pharmaceuticals. The partnership has successfully accommodated relevant concerns on bioprospecting activities thus it is regarded as one of the best practices in access and benefit sharing. 23 20 CSIRO Media Release, Algae could fuel cars and jobs (4 March 2009) CSIRO <http://www.csiro.au/news/biodiesel-from-algae.html>. 21 Peter K. Campbell, Tom Beer, David Batten, Greenhouse Gas Sequestration by Algae-Energy and Greenhouse Gas Life Cycle Studies (17 December 2008) CSIRO <http://www.csiro.au/files/files/poit.pdf>. 22 Australian Government Department of the Environment and Heritage, Genetic Resources Management in Commonwealth Areas: Sustainable Access Shared Benefits (Department of the Environment and Heritage, 2005) 7. 23 For further analysis and discussion regarding the Griffith University-AstraZeneca Partnership see Sarah Laird, Catherine Monagle, Sam Johnston, Queensland Biodiscovery Collaboration The 10
Thus, being a mega-biodiversity and a developed country, it is of paramount importance for Australia to sign the Nagoya Protocol. There is a tremendous potential for the Australian biodiversity to be utilized, and Australia needs to make sure the utilization of its biodiversity is always in conformity with the existing international rules and standards such as those stipulated under the Nagoya Protocol. Australia has also demonstrated its leadership in successfully bringing the ABS mechanism into practice through the Griffith University-AstraZeneca partnerships, and signing the Nagoya Protocol will strengthen the Australia s reputation as one of the pioneers in the ABS mechanism. Griffith University AstraZeneca Partnership for Natural Product Discovery An Access and Benefit Sharing Case Study (United Nations University-Institute of Advanced Studies, 2008). 11
3. Australia: one of the pioneers in the ABS legislation Australia is one of the State Parties to the 1992 United Nations Convention on Biological Diversity (CBD) which have already provided national legislation on ABS through the Environment Protection and Biodiversity Conservation (EPBC) Act 1999 (Cth) and the EPBC Regulations 2000 (Cth). Under the Australian federal system of government, each government of State and Territory manages access to biological resources under its own laws. 24 Currently, however, of six States and two Territories in Australia, only one State and one Territory which have already put specific access regulations in place, namely Queensland 25 and Northern Territory. 26 Victoria has also endorsed an ABS policy to implement the nationally consistent approach in managing access to biological resources. 27 Nevertheless, since it is still only a policy, it remains questionable whether it would be sufficient to deal with legal issues related to ABS. Although Australia can be considered as one of the leading States in ABS regulation, it should be noted that there are still a number of inconsistencies between the ABS regulation in national level on one hand and the ABS regulation in state level on the other. Thus, the nationally consistent approach in managing access to genetic resources has not been fulfilled at this stage. Some inconsistencies also take place 24 Department of the Environment, Water, Heritage, and the Arts, Access to biological resources in States and Territories (5 October 2007) Department of the Environment, Water, Heritage, and the Arts <http://www.environment.gov.au/biodiversity/ science/access/states/index.html>. 25 Biodiscovery Act 2004 (Qld). 26 Biological Resources Act 2006 (NT). 27 Department of Sustainability and Environment, Biodiscovery in Victoria (19 May 2011) Department of Sustainability and Environment <http://www.dse.vic.gov.au/conservation-andenvironment/biodiscovery-policy-home?sq_design_name=print>. 12
between one state and the other, such as between Queensland and Northern Territory. Those inconsistencies comprise several matters, including definitions, scope of application, and penalty. With regard to definitions, there is no consistency in the use of terms. For instance, the Commonwealth regime only uses the term access to biological resources, while the Queensland s Biodiscovery Act uses the term biodiscovery, the Northern Territory regime uses both biodiscovery and bioprospecting, and the Victorian policy views that biodiscovery and bioprospecting share the same meaning. As to the scope of application, both the Commonwealth Regulations and the Northern Territory Act cover private land and traditional knowledge which are not covered by the Queensland Biodiscovery Act. However, it should be noted that currently there is no clear framework regarding the protection and management of the use of indigenous knowledge under the EPBC Act. 28 In terms of penalty, it appears that the Queensland Biodiscovery Act imposes higher penalties compared to the Commonwealth Regulations and the Northern Territory Act. This issue is also highlighted in the Report of the Independent Review of the EPBC Act 1999 where the Panel observed that the penalty provisions for noncompliance in the context of access to biological resources should be reviewed to provide a more meaningful deterrent effect. 29 28 Allan Hawke, The Australian Environment Act Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (October 2009) Australian Government-Independent review of the Environment Protection and Biodiversity Conservation Act 1999, 138 <http://www.environment.gov.au/epbc/review/publications/pubs/final-report.pdf>. 29 Ibid 137. 13
Furthermore, it remains uncertain whether the current Commonwealth regime on ABS has been effective in the realization of economic benefits from the utilization of genetic resources. As discussed earlier, the Griffith University and AstraZeneca partnership may perhaps reflect the success story of the ABS implementation in Australia. Nevertheless, there has not been much of similar story taking place in Australia at the moment. In the last few years, permits for accessing biological resources, including marine biological resources, in the Commonwealth areas have been only granted for non commercial purposes. It is still unclear whether these permits have been properly observed in case there is a change of intent and further development related to accessed resources. It can therefore be concluded that although in general Australia has exercised its rights and fulfilled its obligations with respect to ABS regime under the CBD, challenges remain as the Australian Government still needs to ensure that the nationally consistent approach in regulating access to biological resources has been achieved. Signing the Nagoya Protocol would be the first important step for Australia to improve the current ABS mechanism in Australia. In addition, the Nagoya Protocol s provisions on implementation measures would also contribute to the better and more co-ordinated ABS mechanism in Australia. Ultimately, the signing of Nagoya Protocol would also give a boost to a full realization of Australia s nationally consistent approach on the ABS mechanism. 14
Conclusion The Nagoya Protocol could be regarded a new important chapter in the ABS field. However, it still contains many discretionary provisions and still has not moved significantly further from the principles already contained in the CBD and the Bonn Guidelines. Therefore, domestic laws and regulations pertaining to the the ABS are crucial to the effective implementation of the Nagoya Protocol. Australia needs to participate in this regard by signing and, at a later stage, ratifying the Protocol as not only by becoming a signatory to the Nagoya Protocol will strengthen Australia s international reputation in the ABS field but will also improve the current national ABS mechanism. 15