Declaration and Draft Model Law by the OAU / STRC Task Force on Community Rights and Access to Biological Resources

Declaration and Draft Model Law by the OAU / STRC Task Force on Community Rights and Access to Biological Resources

OAU / STRC Task Force Declaration on Community Rights and Access to Biological Resources

March 1998

1.The Scientific, Technical and Research Commission of the Organization of African Unity (OAU/STRC) task force on community rights and access to biological resources met in Addis Ababa on 20-23 March 1998.

2.The objective of the meeting was to develop a draft model legislation on community rights and access to biological resources to ensure the continuing control by local communities of their natural resources, knowledge and technologies, as well as to develop a draft African Convention on the same.

3.After national review and discussions, the model legislation would be expected to form the basis for African nations to develop national legislation on community rights and access to biological resources, community knowledge and technologies, and an African convention would create coherence among the national legislations.

4.Natural resources and indigenous knowledge and technologies are a legacy humanity owes to local communities. The task force understands a local community as a section of society in a given area whose means of livelihood are based on the natural resources, knowledge and technologies of and related to its immediate ecosystems. The local community keeps adapting, generating and regenerating those natural resources, knowledge and technologies as its preceding generations had done and, if spared disruption by external forces, as its succeeding generations will do.

5.The essential role of the community in the conservation of biological diversity, on which the very survival of planet earth is dependent, is recognized by the Convention on Biological Diversity (CBD). A large part of humanity represented by 150 States created the CBD in 1992.

6.A smaller part of humanity, represented by 40 States, concluded the negotiations for the creation of the World Trade Organization (WTO) in 1994. African countries had negligible or no inputs into the negotiations. The objectives of WTO are global and concern the movement of goods and services throughout the world for the ease of corporate global trade.

7.The two, CBD and WTO, are therefore global, all pervading and very serious.

8.CBD recognizes the essential role of communities in the creation, maintenance and sustainable utilization of biodiversity, knowledge and technologies for the survival of life. On the other hand, WTO promotes the privatization of resources, knowledge and technologies to the detriment of the State and its citizens. WTO imposes IPRs (intellectual property rights) modelled on the protection of industrial innovations to grant individual monopolies on living things and categorically denies the existence of community collective innovations.

9.It is the conviction of the task force that the WTO-based approach is predatory in nature and runs counter to the aspirations of communities which are in the first place the innovators of biodiversity so necessary for the survival of the planet.

10.The task force believes that the privatization of life forms through any intellectual property rights (IPR) regime violates the basic right to life and goes counter to the African sense of respect for life.

11.The task force therefore strongly recommends that OAU/AEC member states urgently make legislation to regulate access to biological resources, knowledge and technologies so that such access shall be allowed only with the prior informed consent of the local communities and the State and shall benefit them, and to recognise community rights in order to protect the heritage of the people of Africa.

12.The task force commits itself to the achievement of the noble objectives of this proposed legislation and this draft convention on Community Rights and on Access to Biological Resources.

Organization of African UnityDraft Model Law on Community Rights and Access to Biological Resources Whereas, the State together with the civil society exercises sovereign and inalienable rights over the biological and genetic resources existing in the national territory,

Whereas, it is necessary to protect and encourage cultural diversity, valuing the knowledge, innovations and practices of the local communities with respect to the conservation, management and use of biological and genetic resources,

Whereas, it is the duty of the State and its citizens to regulate access to biological and genetic resources as well as related knowledge including the entry of such resources into the country,

Whereas, the State recognizes the necessity of providing adequate mechanisms which guarantee a just, equitable and effective participation of its citizens in the protection of their collective and individual rights and in making decisions which affect the biological, genetic and intellectual resources as well as the activities and benefits derived from their utilization,

Whereas, there is the need to promote and support the different ways of generating forms of knowledge and technology nationally by giving priority to the development and strengthening of national capacity in science and technology in order to achieve technological and economic self-reliance,

Whereas, there is the need to implement the relevant provisions of the Convention on Biological Diversity,

Now, therefore,Article 1: Definitions
[to come]

Article 2: Objectives

The objectives of this legislation shall be to:

a) ensure the conservation and sustainable use of biological and genetic resources and related knowledge in order to maintain and improve their diversity as a means of sustaining the life support and health care system of the country,

b) protect and support the rights, knowledge, innovations and practices of local communities and national scientific and research institutions with respect to the conservation, use and management of biological and genetic resources;

c) provide an appropriate system of access to biological and genetic resources and related knowledge based upon the prior informed consent of the State and the concerned local communities;

d) promote appropriate mechanisms for a fair and equitable sharing of benefits arising from the use of biological and genetic resources and related knowledge and technologies as well as ensuring the participation and agreement of concerned communities in making decisions as regards the distribution of benefits which may derive from such use;

e) promote and encourage the building of national scientific and technological capacity relevant to the conservation and sustainable utilization of biological and genetic resources;

f) provide appropriate institutional mechanisms for the effective implementation and enforcement of this legislation.

Article 3: Scope

1. This legislation applies to biological and genetic resources and related knowledge as well as their derivatives existing in the national jurisdiction of the country both in situ and ex-situ.

2. This legislation shall not apply to the traditional use and exchange of biological and genetic resources as well as related knowledge carried out by and between local communities based upon their customary practices.

Article 4: Access to Biological and Genetic Resources and
related Community knowledge and Technologies

1. Priority, in access to biological and genetic resources, shall be given to undertakings being carried out within the country.

2. Access to biological and genetic resources shall be subject to the prior informed consent of the State as well as the concerned local communities and to the requirements and conditions set out below:

a) The Collector shall request the competent national authority for access to biological and genetic resources by application in writing that contains information, inter-alia;

i) the identification of the applicant and the documents which testify to his legal capacity to contract;
ii) detailed and specific information about the resources to which access is sought, including its present and potential uses its sustainability and the risks which may arise from access;
iii) whether any collection of the biological and genetic resource endangers any component of biological diversity;
iv) the purpose for which access to the resource is requested including where appropriate, the type and extent of commercial use expected to be derived from the resource;
v) proposed mechanisms or arrangements for benefit sharing including technology and/or financial transfer to the country and the concerned local communities, and the manner and extent of intended involvement of the country in the necessary research and development of the biological and genetic resource concerned;
vi) the identification or request for the assignment of the national scientific counterpart institution which will participate in the research and be in charge of monitoring the process,
vii) the precise sites where the resource is located as well as the places where the proposed research and development activities will be carried out. In the case of ex-situ genetic resources, all information about the ex-situ center of conservation shall be included.
viii) an indication of the primary destination of the resource and its probable subsequent destination;
ix) an indication of the benefits, whether economic, technical, bio-technological, scientific, cultural social or otherwise, that may derive to the country and the concerned local communities;
x) description of the knowledge, innovation or practice associated with the resource, if any,
xi) presentation of an environmental impact study where this is required.
xii) any other information deemed relevant by the competent authority.

b) Once the application is complete the competent national authority shall place the application in a public registry for a period of___ months which may be consulted by any person.

c) Upon determination that the application has fulfilled all the necessary requirements of the present legislation and subsequent regulations issued for its effective implementation, the competent national authority shall approve the granting of access to the material requested with or without conditions.

2. As soon as the competent national authority grants permission, an agreement shall be signed between the collector and the competent national authority. The agreement shall contain as a minimum requisite:

a) a limit on the sizes of the samples that the collector may obtain and/ or export;

b) guarantee of a deposit of all specimens collected with a duly designated governmental entity;

c) a commitment by the collector to inform the competent authority as well as the concerned local community of all discoveries from the research and development on the resource, if a commercial product is derived from such activity;

d) a commitment by the collector not to transfer the resources to any third party without the authorization of the competent national authority;

e) provision for the payment of royalties to the national government, local communities, or designated beneficiary in case commercial use is derived from the biological and genetic resources taken. Where appropriate and applicable other forms of additional benefits may be negotiated;

f) guarantee of participation of the country in the economic, social and environmental benefits accruing from the products and processes obtained through the use of biological and genetic resources found in the national territory.

g) submission of a regular status report of research on the species concerned and where appropriate the ecological state of the area to the competent national authority, and

h) commitment to abide by the relevant rules of the country particularly those regarding sanitary control, biosafety and the protection of the environmental as well as the cultural practices, traditional values and customs of the local communities.

3. No entry of any biological and genetic resources shall be allowed to the country unless the competent national authority confirms that a prior informed consent has been obtained from the country of origin,

4. The competent national authority may unilaterally withdraw its consent and terminate the agreement and/or further use of the biological and genetic resources concerned whenever it has become apparent that the collector has violated any of the mutually agreed terms, or the overriding public interest so demands.

5. The State in whose jurisdiction the collector operates shall through its competent authority, guarantee that the collector complies with the mutually agreed terms and conditions provided by the country origin and give an indication as to how it intends to enforce it.

6. Any claims upon biological and genetic resources obtained or used in violation of the provisions of this legislation or mutually agreed terms and conditions shall not be recognized and the certificate of intellectual property or similar certificates and licences upon such resources or products and processes resulting from access shall not be considered valid.

7. The competent national authority may, when it deems it necessary, establish restrictions to or prohibitions on those activities which are directly or indirectly related to access to or introduction of biological and genetic resources, particularly in cases of:

a) endangered taxa, species subspecies , or varieties,

b) endemism or rarity;

c) adverse effects upon human health or upon the quality of life or the cultural identity of the local communities.

d) environmental impacts which are undesirable or difficult to control upon urban and rural ecosystems;

e) danger of genetic erosion or loss of ecosystems, their resource or their components, because of undue or uncontrolled collection of germplasm;

f) non-compliance with rules on bio-safety and food security; and

g) use of resources for purposes contrary to national interest and to international agreements entered into by the country.

Article 5: Community Rights

1. The State shall recognize and protect the rights of the local communities to collectively benefit from their knowledge, innovations and practices acquired through generations (past, present and future) and to receive compensation for the conservation of biological and genetic resources in accordance with the provisions of this legislation and subsequent regulations

2. The local communities shall at all times and in perpetuity be the lawful and sole custodians of the relevant knowledge, innovations and practices.

3. No such innovations shall be sold, assigned transferred or dealt with in any manner without the prior informed consent and participation of the local communities concerned.

4. The State shall ensure that at least___percentum of benefits obtained from a direct or indirect commercial use of biological and genetic resources in which the local community are the sole custodian are paid to the concerned local community.

5. Subject to the above paragraphs of this Article, the State shall take regulatory measures to establish a system of collective/community intellectual rights through a process of consultation and participation of the local communities which include the following considerations:

a) the identification of the types of collective intellectual rights (achievements) that are recognized in each case.

b) the identification and definition of the requirement and procedure necessary for the recognition of the collective intellectual right (achievement) and the title to same.

c) definition of a system of collective registration and specific rights and obligation that arise from the entitlement.

d) criteria and mechanisms for the standardization of procedure and

6. The State shall identify in consultation with local communities, technical institutions to assist them to identify and characterize their innovation.

7. The State shall ensure that local communities have the right not to allow the collection of biological and genetic resources and the access to traditional knowledge and technologies in their custody, as well as to demand restrictions upon such activities when it is proved that such activities threaten the integrity of their natural or cultural patrimony.

Article 6: Institutional Arrangements

1. A national inter-sectoral coordination body at the highest level, composed of relevant representatives from the public sector, scientific and professional organizations, NGOs and representatives of local communities, shall be created as a regulatory body to ensure the proper implementation and enforcement of the provisions of this legislation.

2. A technical secretariat (advisory body) which shall equally be inter-sectoral and composed of representatives of the public sector, research institutes and centres, the academic sector, authorities of community organizations and NGOs shall be created to support the work of the national inter-sectoral coordination body .

3. The national inter-sectoral coordination body shall have, inter-alia, the following functions:

a) ensure that the minimum conditions for agreements with collectors is strictly observed and complied with,

b) ensure that the rights of local communities wherein the collection of or research on biological and genetic resources are being conducted are protected, including verifying that the requirement of prior informed consent by the local communities are complied with,

c) study and recommend policies and laws on the utilization of biological and genetic resources including new laws on intellectual property rights and community rights over their knowledge, innovations and practices (community intellectual rights) (achievements) relevant to the conservation and sustainable use of biological and genetic resources;

d) recommend policies and mechanisms for coordination between the entities and organizations competent in matters of biodiversity, genetic resources and bio-safety;

e) establish, together with relevant sectoral agencies, local communities, scientific and non-governmental organizations, lists of and of threatened ecosystems, diversity,

f) issue and update every two years, a report threats to the national biodiversity and about their possible impacts,

g) establish mechanism to enable the identification and dissemination of information regarding threats to biological and genetic diversity,

h) develop plans, strategies and policies to conserve biological diversity and ensure the sustainable use of its components,

i) monitor researches and inventories of the national biological and genetic diversity and ensure the sustainable use of the components,

j) perform such other functions as may be necessary to implement this legislation

Article 7: Establishment of a National Information System

There shall be established a National Information System with regard to biological and genetic resources which include the following aspects:

a) the creation of the facilities required to maintain an up-to-date system of information about the state of conservation, use, management of and research on the biological and genetic resources of the country, and

b) measures towards the repatriation of information on the country’s traditional knowledge and technologies as well as biodiversity.

Article 8: Funding

The funds required to undertake activities towards implementing the provisions of this legislation shall be obtained through the establishment of a national trust fund for which resources may include:

a) allocation of state budget;

b) a portion of the benefits shared by appropriate and concerned sectoral departments;

c) incomes and fees imposed on bioprospecting agreements; and

d) any other source of funds to be identified.

Article 9: Appeals

Decisions regarding approval, disapproval and/or cancellation of agreements regarding the prospecting of biological and genetic resources may be appealed through appropriate administrative channels. Recourse to the courts shall be allowed after exhaustion of all administrative remedies.

Article 10: Sanctions and Penalties

1. Without prejudice to the exercise of civil and penal actions which may arise from violations of the provisions of this legislation and subsequent regulations, sanctions and penalties to be provided may include: a) written warning; b) fines; c) automatic cancellation/revocation of the permission for access; d) confiscation of collected biological and genetic specimens and equipment; e) perpetual ban on prospecting of biological and genetic resources in the country.

2. The violation committed shall be publicized to national and international media and shall be reported by the competent national authority to the secretariats of relevant international agreements/treaties and regional bodies.