Protection of Traditional Knowledge Gender the Proposed Biological Diversity Act- A Critique

On an examination of the various provisions of the BDA, it is clear that there is no express provision vesting the ownership of biological resources and associated traditional knowledge with any one. But if ownership means the exclusive power to deal with biological resources and associated knowledge, it is the national Biodiversity Authority (NBA) who has the exclusive jurisdiction as per BDA[7]. The NBA is a Central Government nominated body consisting of twelve members with Central Government Officials from various departments and specialists and scientific experts in the field of biological diversity . It is expressly stated that NBA  must be located at Delhi[8].The Government also retains the power to remove the Chairman and members. It is not an autonomous or independent body. Nor could it be said to be a democratic institution. In fact it is under the indirect control of the Central Government with inadequate representation of the indigenous and local community whoa re the real custodians of the biological resources and attendant knowledge.

The BDA expressly prohibit the obtaining of any biological resources[9] occurring India and /or associated knowledge for research, commercial utilization, or bio-survey and bio-utilization with out prior approval of the NBA by non-citizens, citizens staying abroad and foreign corporations[10]. There is also prohibition of transfer of the results of research based on biological resources by citizens and corporations located in India with out prior approval from the NBA to persons who are prohibited from access to biological resources without approval[11]. The above prior approvals are not needed in case of collaborative research approved by the Central Government[12]. The NBA is authorized to give approval for an applicant in the prescribed form after making necessary inquiry and on terms and conditions that deem fit including royalty[13]. In this context it is mandatory for the NBA to introduce terms and conditions for equitable sharing of benefits arising our of the use of biological resources and knowledge relating to them. It is expressly mentioned that such benefit many include transfer of technology, location of R & D, association of India scientist and local people with R & D, bio-survey and bio-utilization, location of the production unit, creation of venture capital, payment of compensation etc[14]. What is mandatory is the inclusion of terms and conditions. The NBA has the discretion regarding the nature of the terms and conditions that are to be included depending upon circumstances. In cases where the resources or knowledge were provided by an individual, group or organization any direct monetary compensation will go directly to them based on the terms of the agreement. In all other cases the money will go to the National Biodviersity Fund. The NBA also has an obligation to publish the grant of approvals. It is not clear whether this will include the contents of the agreement as well[15].

It is also mandatory for the NBA to consult the Biodiversity Management Committees (BMC) before taking decisions relating the use of biological resources[16]. But there is no obligation for the NBA to follow the suggestion of decisions of the BMC. There is also no obligation for the NBA to consult or take prior approval of the individuals or groups giving the biological resources or knowledge before giving approval for its use. It is interesting to not that BMC;s are created in the local bodies – panchayat Raj system – for the purpose of promoting the conservation, sustainable use and documentation of biological diversity. This include the preservation of habitats, conservation of lad races, folk varieties and cultivars, domesticated stocks and breeds of animals, micro-organisms and documentation of the knowledge relating to the use of biological diversity[17]. The BDA is silent about the constitution of the committee. It appears the local self government institution is left to decide the members to be included to the committee. There may be a possibility of inclusion of the members of the indigenous and local communities in the committee though their representation is not made mandatory by the BDA. Thus it is clear that while the BMC has the responsibility to conserve the biological resources and knowledge, the NBA has the exclusive power to deal with it without the prior approval of the BMC. While the indigenous and local communities whoa re the traditional custodians has the obligation to conserve the resources and knowledge, the NBA  without their representation or prior approval can enter into any commercial or other agreement with any foreign agencies. This in fact is taking away the ownership and control of the biological resources and knowledge traditionally vested in the indigenous and local communities based on their customary laws without their active involvement. This is against the sprit of the Constitution and CBD. The structure adopted by the BDA is to treat biological resources and associated knowledge as a commodity and to facilitate its commercial exploitation by the foreign agencies. This is clear from the constitution and location of the NBA. Creating of bio-diversity registers at the local level, that too in the digital media, will facilitate the foreign corporations to locate the availability of commercially useful biological resources and associated knowledge and trade on it through the NBA located at Delhi without any direct conduct or responsibility to the indigenous and local communities. The assumption of the BDA seems to be that NBA alone can be competent body to understand and assess the importance of the biological resources and its commercial potentials. They are also assumed to safe guard the interest of the indigenous and local communities scattered over the length and breadth of India, an assumption proved wrong on many previous occasions in similar situations. The law seems to still assume that indigenous and local communities are incapable of managing and protecting their biological resources and knowledge which they were protecting for centuries. This assumption needs to e changed if one is concerned with the development of these communities.

It is interesting to note that unlike foreigners, the citizens and corporations of India are permitted to use the biological resources and knowledge for all purposes without permission from any one. They are bound only to give prior intimation to the State Biodiversity Board (SBB) concerned about obtaining any biological resources for commercial utilization, bio-survey and bio-utilization[18]. They also have no statutory obligation to share the benefits derived from its commercial utilization to the indigenous and local communities. It is for the SBB to decide in consultation with the local self-government whether to impose restriction or other terms and conditions on the use[19]. The SBB is to be created by the State Government for the purpose of implementation of the BDA. The creation of SBB is not mandatory and its constitution and composition are not stated in the BDA. They are to be spelt out through the Rules[20]  This again makes it clear that the SBB need not necessarily be a democratic institution and in all probability to filled with Government Officials, that too from the forest department. Even if there are going to be non-officials there will not be adequate representation of the indigenous and local communities. Thus it is clear that the knowledge of the indigenous and local communities are going to be exploited by the Indian Corporations without prior informed consent and compensation. What is distrusting is that the indigenous and local communities are also duty bound to inform the SBB if they use their own resources and knowledge for commercial purposes. It is a fact that many communities even today survive based on traditional commercial activities depending on biological resources. The SBB has the power to restrict the access to these resources on the ground of conservation there by affecting their livelihood. Failure to inform the commercial utilization or failure to obey the decisions of the SBB are offences punishable with imprisonment for a term which may extend up to three years or fine up to five lakhs or with both[21] . Thus the traditional custodians of the biological resources are going to be at the mercy of the SBB for their survival and face similar problems they are now facing under the Forest Act. The forest dwellers are going to be the most affected by this legislation. They are not only deprived of their legitimate right to get the benefit for the use of the biological resources and knowledge but also put under restriction regarding it sue for commercial purpose. The apostles’ of this draft legislation seems to have conveniently ignored the fact that India still lives on her villages and majority of her down trodden lots living there still survive based on their traditional industries utilizing biological resources. The BDA thus is a legislative framework to legalize the bio-piracy at the cost of the NBA to protect the knowledge of the local people by suggesting  measures to the Central Government. This includes measures to register such knowledge at local, sate and national levels and to develop a sui generis legislation to protection the intellectual property of such knowledge[22] .

After giving all powers to the NBA to trade on the knowledge, one cannot appreciate the intention behind this provision. The approach followed in the BDA is to separate the biological diversity from the knowledge associated with ignoring the fact that they  re inseparable when it comes to commercial exploitation or conservation.

The BDA required restructuring if one is really concerned about he protection of the traditional knowledge of the indigenous and local communities associated with biological resources. The approach must  be to treat biological resources and the knowledge associated with it as inseparable. This will mandate the recognition of the ownership of biological resources and  the associated traditional knowledge with the indigenous and local communities. This is the approach followed by the Government of Philippines in the legislation protecting the rights of the indigenous communities[23]. The law must facilitate the creation of democratic institution at the local level in the form of trust, collective or cooperatives with the full and effective participation of the custodians of biological resources to own and manage the biological resources. There can be limited representatives of the government and experts in these institutions to advise and help them in giving access and entering into appropriate agreements. There must be representative bodies at the districts ate and national level to handle disputes arising from the local institutions and also to safe guard the state or national interest. These bodies can also be empowered to give access and enter into agreements in cases where it is difficult to identify the community that own the biological resources. A legislative framework that confers powers to manage biological resources to the indigenous and local communities alone can ensure the protection of the sustainable use of biodiversity.