Canada: time to take access and benefit sharing over genetic resources seriously.

• Author: Oguamanam, Chidi

INTRODUCTION

The diverse techniques for manipulating the genetic materials of living organisms and for exploring the complex chemistry of biological systems for food and agriculture, medicine and therapeutics, and for other complex indeterminate ends is described as biotechnology. (1) Generally, biotechnology is an umbrella term implicating diverse disciplinarily convergences ranging from molecular biology, genetics, genomics, pharmacogenomics, to other sub-sets and specific classifications such as agricultural biotechnology, plant biotechnology and marine biotechnology, to name a few.

One of the consequences of the prominence of biotechnology in the global knowledge economic order has been the shift in the direction of innovation from technological to life sciences inventions. (2) This new emphasis on the life sciences and the resulting rise in biotechnological innovation underscores the interconnectedness between biological processes and socio-cultural relationships, especially in regard to the present focus on genetic resources in indigenous and local communities. By some accounts, well over 70% of global biological or genetic resources are located in indigenous and local communities across the globe. These communities are the centers of global biodiversity. (3)

Indigenous bio-cultural knowledge and insights relate to the immemorial but dynamic and generally informal experience of the members of indigenous and local communities (outside the Western industrialized societies) in dealings with the diverse genetic resources endemic to their ancestral homelands. In many ways, such epistemic orientation depict a worldview that is based on the sanctity of the ecological order as an aspect of indigenous and local communities environmental ethic and integral to their socio-economic survival. It also constitutes critical aspects of their self-determination. Indigenous knowledge and insights thereof are critical to the advancement of life sciences and biotechnology in our increasingly converging knowledge system. (4) Given the relationship of dependence between biotechnology, biodiversity, biological resources and associated knowledge in indigenous and local communities, the latter have become interested stakeholders not only in biodiversity conservation and the regulation of the biotechnology enterprise, but also in the allocation of their benefits. Efforts are currently underway to create a national and international framework for fair and equitable access to biological resources as well as a fair and equitable sharing of the benefit of innovations arising from dealings in genetic materials and associated indigenous knowledge under the rubric of access and benefit sharing (ABS). (5)

The recent international initiative for a global treaty regime on ABS presents a strategic opportunity for Canada to take the issue of ABS seriously. A tactical approach to ABS would recognize the immemorial custodial role of Aboriginal people in tending Canada's biodiversity and the contributions of their indigenous knowledge in genetic research and bio-related innovation. Such an approach would also position Canada optimally as a user and provider of genetic resources. It would place Canada in a position of leadership as a credible broker around the hardened schism in the politics of ABS. Thus far, the politics surrounding ABS have pitted developed countries as the users, against developing countries as the providers of genetic resources. Canada has the opportunity to be in a position to demonstrate that the positions of user and provider of genetic resources are not mutually exclusive. That understanding is necessary for progress on a credible global ABS regime.

ABS: A MATTER FOR FAIRNESS AND EQUITY

Why has the language and imperative for fairness and equity been added into the biodiversity conservation lexicon? Briefly, it arises from a simple recognition of the fusion between biological diversity and indigenous knowledge. Also, it is part of the convergence in knowledge systems, especially given regard to the importance and attraction of indigenous bio-cultural knowledge and biological resources for modern biotechnology. In another way, it is a response to the dichotomy between the concentration of biological resources in the global south, home of many indigenous and local communities on the one hand, and the repository of the scientific and industrial infrastructure for their exploitation in the industrialized or global north on the other hand. The application of biotechnology in dealing with biological resources in indigenous and local communities inherently involves contact with associated indigenous knowledge. (6) In practical terms, biotechnology has often been a site for the elaboration of the fluidity of boundaries across knowledge systems, especially in regard to aspects of western science and indigenous knowledge systems. (7)

THE CBD AND GLOBAL FRAMEWORK FOR ABS

Since 2000, the United Nations Convention on Biological Diversity embarked on a dedicated program through its Working Groups on ABS and on Article 8(j), with a view to a full realization and practical translation of the Convention's objectives, especially as they relate to ABS and indigenous knowledge, in the context of biodiversity conservation. After more than one half decade of CBD's initiatives on ABS, there has been a significant response to the subject of equitable ABS at many levels, particularly pursuant to the 2002 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising Out of their Utilization. (8)

The first level relates to the international arena where the CBD initiatives on ABS provide the impetus for convergences in multiple forums in which ABS is explored in varying degrees. For instance, at the WTO-TRIPS (Trade-Related Aspects of Intellectual Property Rights) Council, there is presently a proposal to entrench the ethics of Prior Informed Consent (PIC) and equitable benefit sharing in the TRIPS Agreement. Consequently, there is a push to amend the TRIPS Agreement to accommodate disclosure of origin of genetic resources and associated indigenous knowledge in patent applications. Sponsors of this amendment argue that it would ensure that TRIPS is aligned with the CBD objectives, as opposed to its current status of potentially undermining the CBD. (9) At the World Intellectual Property Organization (WIPO), similar sentiments are being expressed under two significant frameworks. The first is under the auspices of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC/GRTKF) (10) and the second is via the WIPO Patent Agenda, (11) specifically in the inchoate negotiation of an international patent law treaty for the harmonization of key aspects of patent law under the aegis of Substantive Patent Law Treaty (SPLT). Still under the international framework, the subject of ABS is also an integral part of a more enduring debate around farmers' rights, (12) which was reinvigorated following the 2001 FAO International Treaty on Plant Genetic Resources for Food...