Biodiversity

Annexure
BIODIVERSITY CONSERVATION
PROCEEDINGS OF THE ROUND TABLE DISCUSSION
(Under EMCBTAP & ENVIS Programme)
DECEMBER 11, 2003 KOLKATA
Department of Environment, Government of West Bengal 4 Fairlie Place Kolkata 700 001
West Bengal Pollution Control Board Paribesh Bhaban Bldg 10 A, Block LA, Sector III Salt Lake City, Kolkata 700 098
Annexure
CONTENTS
Acknowledgements Foreword Chapter No. Chapter I Chapter II Introduction The Roundtable Discussion on Biodiversity Conservation Summary of Rapporteurs Biodiversity Need Documentation and Conservation A K Sharma Conservation measures for biodiversity with special reference to important crops of West Bengal A K Ghosh The Indian Biodiversity Act and Sustainable Use and Equitable Distribution of Benefits from Commercial Utilisation of Biological Resources Biju Paul Abraham Legislation on Biological Diversity: Scope for the existing legislation and need for further action Joy Dasgupta The Biological Diversity Act, 2002 List of participants at the Roundtable Discussion on Biodiversity Conservation List of Acronyms Chapter Page No. 1 3
Chapter III
10
Chapter IV
15
Chapter V
28
Chapter VI
36
Annex I Annex II
i xxiv
Annex III
xxvi
Annexure
Manabendra Mukherjee
Minister-in-Charge Information Technology & Environment Deptt. Govt. of West Bengal Writers Buildings, Kolkata - 700 001
FOREWORD
At the United Nations Conference on Environment and Development (UNCED) held at Rio de Janerio in 1992, one of the major concerns was expressed about the crisis of biodiversity conservation. A Convention on Biological Diversity (CBD), which is the first international agreement to view biodiversity as a resource over which nation states have sovereign rights, was eventually agreed to by 159 nations. The Convention now has 184 countries as its signatories and states that in the future, any access and transfer of biological materials should be governed by the clause of mutually agreed term and based on a beneficiary mechanism. Biological Diversity as defined in the Convention, is the variability among living organisms from all sources. This includes the genetic diversity within species, diversity between species of fauna and flora and the diversity of ecosystems. India being a signatory to the Convention, has produced a status report at the national level (1998), prepared a National Biodiversity Strategy and Action Plan (2002) and enacted the Biological Diversity Act (2002). The CBD, however, calls for a grass-root level action and a strategic planning to ensure the conservation of the worlds rich natural resource. The state of West Bengal occupying 2.7 per cent of the total geographical area of the country exhibits rich biodiversity both at the ecosystem level as well as the species level. The state possesses 10 per cent of the faunal and 20-45 per cent of the floral diversity of India. To deliberate upon the above subject, eminent experts from different fields expressed their opinions in a Roundtable Discussion held at Paribesh Bhaban, Salt Lake on December 11, 2003. This publication is the outcome of the deliberations. Arranged by the Department of Environment, Government of West Bengal and the West Bengal Pollution Control Board, the discussion covered issues such as the current status of biodiversity in West Bengal, related critical issues and the implications of the Biological Diversity Act, 2002. I hope that this document would be read with interest by all concerned and will also be helpful to those working in the field of biodiversity conservation. Shri Manabendra Mukherjee Minister-in-charge, Deptts. of Information Technology & Environment Government of West Bengal & Chairman, WBPCB
Annexure
ACKNOWLEDGEMENTS
The Department of Environment, Government of West Bengal and the West Bengal Pollution Control Board gratefully acknowledges the guidance and support of Shri Manabendra Mukherjee, Honble Minister-in-charge, Departments of Information Technology & Environment, Government of West Bengal (GoWB) in organising the workshop. We acknowledge the initial motivation of Shri Hirak Ghosh, Principal Secretary, Department of Environment, GoWB & Chairman, WBPCB and Dr. S.K. Sarkar, Member Secretary, WBPCB without whose guidance and support the workshop would never had been a reality. We are thankful to the experts who chaired the different sessions of the workshop Dr. H.J. Choudhury (Joint Director, Botanical Survey of India), Shri S. Barma (Principal Secretary, Department of Agriculture, GoWB) and Shri N. Ramji (Principal Secretary, Department of Forest, GoWB). We would like to thank the distinguished speakers for sparing their valuable time to attend the workshop and making it successful through effective interaction and extending valuable suggestions Dr. A.K. Sharma (Professor, Centre for Advanced Studies, Department of Botany, Calcutta University), Dr. A.K. Ghosh (Director, Centre for Environment and Development), Shri Biju Paul Abraham (Professor, Indian Institute of ManagementCalcutta) and Shri Joy Dasgupta (Research Associate, National University of Juridical Sciences). The contribution of the key discussants during the workshop helped enrich the proccedings with their wisdom and guidance Shri Pranabesh Sanyal (Additional Principal Chief Conservator of Forest, GoWB), Dr. Ramakrishna (Additional Director, Zoological Survey of India), Dr. Debal Deb (Secretary, ENDEV-Society for Environment & Development), Dr. Swati Sen Mandi (Professor, Bose Institute), Shri S. Palit (Chief Conservator of Forest (Retd.), GoWB), Shri A. Pal (Assistant Director, Agriculture Training Centre, Phulia, GoWB) and Smt Meena Panicker (Lecturer, National University of Juridical Sciences). We acknowledge the contribution of the rapporteurs during the different sessions of this worshop. We would like to extend our very special thanks to Dr. A.K. Ghosh, Director, Centre for Environment and Development for his indispensible help and guidance in editing the document. We sincerely appreciate the efforts of all our colleagues the officers and staff of the Department and the Board whose diligence and enthusiasm have made this workshop possible.
CHAPTER I
INTRODUCTION
The history of origin and the process of evolution have led to the diversity of life forms. The increase in environmental awareness over the last few decades has underlined the need to enhance our understanding of the ways in which human race and biodiversity interact. It is surprising that till 1992, the subject of biodiversity was never given the attention that it deserved, both at the national and the international level. It was only in June 1992, at the United Nations Conference on Environment and Development (UNCED) that the issue of biological diversity was taken up as a priority area for action for conservation and sustainable use. However, preparations for a Convention on Biological Diversity (CBD) were initiated by the Governing Council of the United Nations Environment Programme (UNEP) in 1987 through the establishment of an Ad Hoc Working Group of Experts on Biological Diversity, which met in 1988. The Ad Hoc Working Group was followed in 1991 by an Inter-Governmental Negotiating Committee for devising a Convention on Biological Diversity. The agreed text of the CBD was adopted by 101 governments in Nairobi in May 1992 and was signed by 159 governments and the European Union at the UNCED held in Rio de Janeiro in June 1992. The Convention finally entered in to force on December 29, 1993, which has since then been signed by 184 countries. India became a signatory to the Convention by signing it on June 5, 1992. The main objectives of the CBD, to be pursued in accordance with its relevant provisions, include conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of benefits arising out of the utilisation of genetic resources by means of: Appropriate access to genetic resources; Appropriate transfer of relevant technologies, and, Appropriate funding. These pivotal issues were firmly set on the agenda of each signatory country and led to the need of a close analysis of all the issues raised by the provisions of the Convention and a search for ways in which they can be implemented effectively. India, being a signatory to the CBD, has three positive obligations to meet: Submission of a status report: A report titled Status of Biodiversity in India was prepared in 1997 and submitted in 1998. Preparation of National Biodiversity Strategy and Action Plan (NBSAP): The report was prepared over a period of three years and submitted in October 2002. Enacting laws to protect biodiversity of the country: The Biological Diversity Act, 2002, was passed on December 11, 2002 and it received the assent of the President on February 5, 2003.
December 11, 2003
l
Proceedings of Round Table Discussion
Introduction The Union Ministry of Environment and Forests (MoEF), India, passed the Biological Diversity Act, 2002, with an objective to regulate access to genetic resources and associated knowledge by foreign individuals and institutions and ensure equitable sharing of benefits arising out of resources and knowledge available in the country. In short, the Act is aimed to protect and regulate access to plant and animal genetic resources and traditional knowledge (TK). A three-tiered system of regulation is envisaged under the Biological Diversity Act, which consists of the National Biodiversity Authority (NBA) at the head, followed by State Biodiversity Boards (SBB) and local-level Biodiversity Management Committees (BMC). Every state of India, thus, has a responsibility for the formation of the State Biodiversity Board that would be linked with the Biodiversity Management Committee. However, as under Section 41(1) of the Act, the level at which the BMC would be formed (Village/ Panchayat/Block) is not clear. The conservation of biological diversity is not the mere inventorisation or protection but also calls for judicious use to meet the vital demand of the local population as also for trade (internal and external). The current debate on the patenting of life forms, process and/or products has added another dimension to the subject of biological diversity. The issue of using materials from the vast base of traditional and ecological knowledge for the purpose of patenting under the claim of innovation has created yet another heated debate. In view of the Biological Diversity Act, 2002, the SBB is thus expected to look into the multi-dimensional profile of the subject (however, the SBB is yet to be constituted, as the Rules for the same have not been framed till date.) Keeping this in view, the Department of Environment (DoE), Government of West Bengal (GoWB) arranged an intensive state-level workshop on Biodiversity Conservation at Paribesh Bhaban, Salt Lake City on December 11, 2003. The following four major areas of concern were addressed during the workshop: Biodiversity need Documentation and Conservation; Conservation measures for biodiversity with special reference to important crops of West Bengal; The Indian Biodiversity Act and Sustainable Use and Equitable Distribution of Benefits from Commercial Utilisation of Biological Resources; and, Legislation on Biological Diversity: Scope for the existing legislation and need for further action. The opinions expressed by the various presenters and in some cases, by the lead discussants, have been documented in the present volume.
December 11, 2003
CHAPTER II
THE ROUND TABLE ON BIODIVERSITY CONSERVATION: SUMMARY OF RAPPORTEURS

SCHEDULE OF THE ROUNDTABLE DISCUSSION ON BIODIVERSITY CONSERVATION Venue: Conference Room, Paribesh Bhaban, Salt Lake City Date: December 11, 2003 Time: 10:00 a.m. Theme I Status of documentation of biodiversity in West Bengal Key Contributor : Chair: Discussants: R appor teur : Theme II Prof A K Sharma Dr H J Choudhury Shri Pranabesh Sanyal Dr Ramakrishna Shri A A Danda
Conservation measures for biodiversity with special reference to important crops of West Bengal Key Contributor : Chair: Discussants: R appor teur : Dr Asish Ghosh Shri S Barma Dr Debal Deb Dr Swati Sen Mandi Shri Arupendranath Mullik
Theme III
Sustainable use and equitable distribution of benefits from commercial utilisation of biological resources Key Contributor : Chair: Discussants: R appor teur : Prof Biju Paul Abraham Shri N Ramji Shri S Palit Shri A Pal Shri A A Danda
Theme IV
Legislation on Biological Diversity: Scope for the existing legislation and need for further action Key Contributor : Chair: Discussants: R appor teur :
December 11, 2003
l
Shri Shri Smt Shri
Joy Dasgupta Hirak Ghosh Meena Panicker Arupendranath Mullik

3
Summary of Rapporteurs Inaugural Session Shri Hirak Ghosh, IAS, Principal Secretary, Department of Environment (DoE), Government of West Bengal (GoWB) and Chairman, West Bengal Pollution Control Board (WBPCB), in his welcome address said that the Biodiversity Act, 2002 have come into force in 2003 and that the Roundtable discussion has been organised to gain insight into the threats to biodiversity and the means for its conservation, and address the issue of equitable distribution of benefits from commercial exploitation of biological resources. He informed that the objectives of the Act are the same as that of the Convention on Biodiversity, 1992. He was of the opinion that the provisions of the Act are rather rigid and that the authority is centralised at the national level. He added that the Roundtable should deliberate, in light of the Act, on what needs to be done so as to be able to implement its provisions. Shri Ghosh informed that the NBA had been constituted and the SBB would be constituted soon. In his inaugural address, Shri Manabendra Mukherjee, Minister-in-charge, Departments of Environment & Information Technology, Government of West Bengal, expressed both pleasure and disappointment about the Act. He was happy that the Act is in place but disappointed as the provisions vest authority at the national level. He said that the Rules to enforce the Act are yet to be framed. Shri Mukherjee added that the state government was keen to examine the possibility of introducing a state-level legislation on biodiversity conservation in the next Budget Session. He was of the opinion that the Act has a fundamental contradiction in the sense that the authority is centralised whereas the knowledge about biodiversity conservation exists at the local level - the issue that would be addressed in the proposed state Act. He cited the example of trawling in the Sundarbans, which is damaging the ecosystem but is not illegal. The proposed Act would address such issues as well. The Honble Minister emphasised that efforts to conserve biodiversity require documenting the status of biodiversity in a scientific manner and cited the example of the ENDEV initiative in ten villages of West Bengal. The other important aspect of biodiversity conservation, according to the Minister, was awareness generation among the various stakeholders. He spoke of the government initiative in 1900 schools of the state under the National Green Corps (NGC) programme. This programme has produced local area biodiversity inventories, which could be helpful for further planning. Theme I: Status of documentation of Biodiversity in West Bengal The Chairman of the first session, Dr H J Choudhury, Joint Director, Botanical Survey of India (BSI), in his opening remarks, stated that the status of biodiversity documentation is less than complete in the sense that most of the documentation efforts have been directed towards higher plants, though the diversity in lower plants is higher. He informed about the BSI publications on state flora of West Bengal and the flora of fragile ecosystems and protected areas (PA); some of these are in the process of publication. He was of the opinion that organisations like the BSI and the universities are documenting biodiversity, but these efforts need to be coordinated and the findings compiled.
4
l
December 11, 2003
Summary of Rapporteurs Prof A K Sharma, Centre for Advanced Studies, Department of Botany, University of Calcutta, in his presentation emphasised that maintenance of biodiversity in the subcontinent is important because of its mega diversity in the region in terms of the number of species, the number of genotypes within species, and the number of individuals within genotypes and cited the example of banana. (The details of this presentation is given in Chapter II.) Shri Pranabesh Sanyal, Additional Principal Chief Conservator of Forest, Government of West Bengal, reinforced the importance of the state in terms of species diversity, as indicated in the following table.
No of species in West Bengal Mammals Birds Reptiles Butterflies/Moths Angiosperms 188 649 145 941 14,000 No of species in India 390 1232 456 1500 18,000 Indias global rank 8 th 7 th 6 th 3 rd 10 th Top ranked country Brazil Columbia Mexico Indonesia Brazil
He said that the Sundarbans in the state, harbour 86 inter-tidal plants, of which 26 are endangered and that there are instances where over-conservation has proved detrimental as in the case of Siberian crane and Nypa sp. He further informed the Roundtable about the Mangrove Ecological Park set up by an NGO with the assistance of the DoE, GoWB, where 56 species of mangroves have been planted and are flourishing. He said that the identification of chak keora (Sonaraceae) from the pollution point of view is important since it can tolerate high levels of Biochemical Oxygen Demand (BOD) and it should be propagated. Shri Sanyal also informed that due to aided breeding by the Tiger Reserve Project, the estuarine terrapin (Batagur) has been brought back from the verge of extinction. On strategic intervention for documentation of biodiversity, he was of the opinion that local bodies (Panchayats) should be educated in this regard and that students can be effective vehicles for spreading awareness and cited the example of students of a college from the Sundarbans who helped save the oyster population from being over- exploited. Dr. Ramkrishna, Additional Director, Zoological Survey of India (ZSI) stressed the necessity of constituting the SBB at the earliest. He informed about the publications brought out by the Survey during 1992-95 in 12 volumes that record the fauna of West Bengal, including the protected areas in the state. He was of the opinion that there is a need for re-analysis of the Red Data Book on endangered species of animals based on sightings of such animals since some of them are closer to extinction than before, while others have been brought back from the verge of extinction. Shri Ghosh, Principal Secretary, DoE, GoWB informed that the WBPCB would acquire the documents on biodiversity and the WBPCB Library would act as the Document Resource Centre, which could be accessed by the general public. He said that a list of
December 11, 2003
l
Summary of Rapporteurs such documents needs to be prepared and expressed the wish that the participants at the Roundtable could help compile the list. He also explained the details of the Environmental Campaign launched by the WBPCB and the DoE, GoWB, in conjunction with the state Forest Department. He added that the Campaign supports various awareness programmes involving the students and teachers of schools and colleges. In course of the discussion, Dr. Asish Ghosh (A.K. Ghosh) informed about the book on Ecosystems of India published by the ZSI in 2002. Shri S Barari, Chief Environment Officer, DoE, GoWB commented that biodiversity documentation should also record interactions between plants and animals like mutualism and parasitism. Theme II: Conservation measures for biodiversity with special reference to important crops of West Bengal The theme Biodiversity was chaired in place of of the second session of the Roundtable was Conservation Measure for with Special Reference to Important Crops of West Bengal. The session by Dr. B.K. Bhattacharya, Joint Director, Department of Agriculture GoWB, Shi S. Barma, Principal Secretary, Department of Agriculture, GoWB.
Dr. Bhattacharya initiated the discussion in a brief manner by focusing on the increasing population and how this led to a higher demand on agricultural production. He also pointed out the shift from the use of organic manure to chemical fertilisers for higher yield of crops. Dr. Asish Ghosh, Director, Centre for Environment and Development was the presenter of the session. He gave a lucid and informative presentation, which was set on the three pillars of conservation measures, sustainable utilisation, and crops. He identified the causes of loss of biodiversity as follows:
l l l l
Human population growth Inequity in ownership Inadequate knowledge Introduction of exotic species
(The details of this presentation is given in Chapter III.) Following the deliberation of Dr. Ghosh, Dr. Bhattacharya introduced the first discussant of the session, Dr. Debal Deb, Secretary, ENDEV-Society for Environment and Development. Dr. Deb made a simple and lucid presentation focusing on the disappearance of rice varieties. He expressed grief about how 4560 varieties of rice were shifted from the Rice Research Centre at Chinsurah, West Bengal to the International Rice Research Institute (IRRI), Philippines. (The details of this presentation is given in Chapter III: Response Section) Dr S Sen Mandi, Professor, Bose Institute, was the second discussant. In her brief lecture she pointed out that in situ conservation is the best mode of biodiversity conservation. She was of the opinion that DNA fingerprinting with the use of primers can be useful for distinguishing the clones and thus Intellectual Property Rights can be protected. (The details of this presentation is given in Chapter III: Response Section)
6
l
December 11, 2003
Summary of Rapporteurs Dr. B.K. Bhattacharya informed the house that the aim of the Agriculture Department is not HYV use but food security. He mentioned that there are 7 research stations and state-owned soil-testing laboratories. He added that the Agriculture Dept. has both Integrated Pest Management and Integrated Food management Programmes. Answering a question about the decentralisation of power and the role of NGOs, Shri S. Barma, Principal Secretary, Department of Agriculture, GoWB, said that Department would encourage NGOs to enhance agro-business and agro-clinics. He also mentioned about the Crop diversity Programme of the Agriculture Department and the seed bank in Midnapore, which store many varieties of seeds. Theme III: Sustainable use and equitable distribution of benefits from commercial utilisation of Biological Resources Shri Biju Paul Abraham, Professor, Indian Institute of Management, Calcutta, divided his presentation into three parts: 1 . Context of sustainable use and benefit sharing of resources; 2 . Problems of sustainable use and benefit sharing; and 3 . Guidelines for Public Policy According to Prof. Abraham, interest in biodiversity is the result of strides made in biotechnology as the non-traditional benefits rise due to advancement in technology which in turn results in bio-prospecting. He added that public policy must provide incentive for exploitation as well as conservation, which will convince firms that sustainability is in their long-term interest. The challenges, as stated by Prof. Abraham, in the implementation of the Act are as follows: 1 . Implementation of provisions of the Act at the local levels through the State Boards; 2 . Differential implementation of the provisions since the Act does not recognise local variations; and 3 . Policy needs to be supported by research, which is currently inadequate. (The details of this presentation is given in Chapter III.) Dr. Asish Ghosh made three observations about Prof. Abrahams presentation: 1 . Biodiversity has its own value and does not require commercial value for its protection and conservation; 2 . There was no mention of disincentives against over-exploitation of biological resources by firms; and 3 . Firms have no interest in conservation as such. Shri S. Palit, Chief Conservator of Forests (Retd.), GoWB, following Prof. Abrahams presentation, stressed the need for peoples participation for biodiversity conservation citing successful examples of forest regeneration initiatives pioneered in West Bengal. He was of the opinion that the management paradigm is important rather than legislation, which should support legal framework; nevertheless he felt the necessity of a public policy. Shri Palit felt that currently, biodiversity is consistently undervalued and the
December 11, 2003
l
Summary of Rapporteurs strategy to conserve biodiversity is to conserve landscapes rather than particular species. He stressed the contribution of biodiversity in terms of money assessed by citing the following examples:
l
The value of water supplied to Melbourne, Australia from forested water catchments is $250 million per year; The viewing value of elephants in Kenya is estimated at $25 million per year; The carbon storage by forests in Brazil is viewed at $1300 per hectare per year.
l l
According to Shri Palit, conservation measures have ignored social and political institutions and there is a need for transboundary cooperation among states and to address the subsistence needs of populations inhabiting peripheral areas of biodiversity rich regions. He emphasised that conser vation measures need to be transparent and should institutionalise participation. Reacting to the trans-boundary issue, Dr. Debal Deb urged for trans-boundary initiatives across academic disciplines and government departments for successful conservation programmes. Shri A Pal, Assistant Director, Agriculture Training Centre (Phulia), GoWB, stressed the conservation of food and non-food crops and cited examples of loss of rice varities in South India that provided much higher yields than present day high yielding varieties of paddy. He was of the opinion that conservation of seeds of food and non-food crops would provide food security to the burgeoning Indian population apart from providing germplasm for newer varieties of plants and would also have the potential of earning foreign exchange through exports. The Chairman of the session, Shri N Ramji, Principal Secretary, Department of Forest, GoWB, commented that empowerment of people would ensure conservation and that the market drives habits, which is apparent from the fact that the consumption of coarse grains is falling as opposed to finer grains, thus acting as disincentive for conserving coarse grains. Theme IV: Legislation on Biological Diversity Scope for the existing legislation and need for further action The theme of session IV of the Roundtable was Scope for the existing legislation and the need for further action. The discussions in this session mainly revolved around the Biodiversity Convention and the Biodiversity Act. Shri Hirak Ghosh, Principal Secretary, DoE, GoWB & Chairman, WBPCB chaired the session. Shri Ghosh gave a brief introduction to the Biodiversity Act, 2002, saying that the Act is the reflection of the Convention on Biodiversity, 1992. The main objectives of the Act are conservation, regulation and equitable sharing. He said that equitable sharing meant sharing between local people and the commercial exploiters. Prof. Joy Dasgupta, Research Associate, National University of Juridical Sciences (NUJS), gave an explanation of the Act. He said that the most important aspects of the Act are - that it accepts the sustainable usage and equitable sharing. He was of the opinion that sustainable usage was the key word and that the Act looks at both forest areas and nonforest areas. (The details of this presentation is given in Chapter V.)
8
l
December 11, 2003
Summary of Rapporteurs The discussant of the session, Smt Mina Panicker, Lecturer, NUJS, was of the opinion that the Biodiversity Act, 2002, has put more emphasis on access than on conservation. She inquired that whether IPR could be given to the holders of traditional knowledge, which is passing on for generations. She laid emphasis on awareness building of local people about valuing their knowledge and the genetic diversity. She also pointed out that the problem of overlapping areas in legislation that are framed, must be resolved, as it leads to difficulty in implementation. She added that the civil societys participation is an important aspect. (The details of this presentation is given in Chapter V: Response section.) Concluding Session In his concluding remarks, Shri Ghosh, Principal Secretary, DoE, GoWB & Chairman, WBPCB, mentioned about the need of awareness-raising among people about the provisions of the Biodiversity Act and also to publish a Bengali version of the Act for the common people. He also reiterated his determination to set up a Document Resource Centre at the WBPCB. Shri Ghosh suggested that Dr. Asish Ghosh could take up the responsibility of compiling the proceedings of the Roundtable so that a booklet can be published for wider distribution and awareness generation on the Act. Dr. Swati Sen Mandi again suggested that a centre for plant DNA fingerprinting and diagnostics should be established in Eastern India to document plant biodiversity, which was also suggested by Prof. Sharma during his presentation. Dr. Sen Mandi added that the Bose Institute has already applied for patent for drought-tolerant tea plants and that a similar application has possibly been made for salt-tolerant gene of rice.
December 11, 2003
CHAPTER III
BIODIVERSITY NEED DOCUMENTATION AND CONSERVATION

A K Sharma
Centre for Advanced Studies Department of Botany University of Calcutta Ballygunj Science College 35 Ballygunj Circular Road, Kolkata 700 019
2.1.0
Origin of biodiversity
In order to trace the origin of biodiversity, one would have to go back to the origin of life itself. Though life originated on earth nearly four million years back, the basic molecule of life had been ribonucleic acids (RNA) and not deoxyribonucleic acids (DNA). The first molecule to arrive at the hot, anaerobic and most inhospitable world was the RNA molecule. In the evolution of life forms, DNA came much later, the intervening period being dominated by the RNA molecule. Leaving aside the RNA world, even in the first phase of the DNA world, the microbes with the single DNA molecule were in existence. These microbes, our predecessors, had incipient diversity of forms, all originating from archaen heat-loving and sulphur-metabolising bacteria. From Pre-Cambrian to Cambrian, there was a sudden and tremendous upsurge in evolution giving rise to a wide variety of plants and animals along with the entire spectrum of the globe, especially in the ocean. Three crucial but independent biological events were associated with the upsurge of evolution. These were multi-cellularity, sexual reproduction and capacity of utilising solar energy for photosynthesis. The way through which all these unrelated events were simultaneously triggered is not known. From such accidental upsurge, the biological diversity through geological ages and through continued environmental changes have become complex and extended. At present, we have more than 47,000 species of plants in India. A large number of species are unknown and will not be known, as majority of these will perish before their discovery. 2.2.0 Gene Centres
This region of the globe is the center of origin of a number of taxa representing a wide spectrum of biodiversity, the area being designated as megadiversity zone with several gene centers. Such gene centers or centers of origin of different species of a genus, represent maximum number of genotypes or species, maximum number of individuals in a population and maximum variability. The abundance of plants is also the reason why several species are facing extinction due to large-scale exploitation and degradation of forests.
10
l
December 11, 2003
A K Shar ma 2.3.0 Bioprospecting and biodiversity Why study of gene pool?
Deep concern is now expressed in various circles at the decimation of forests and extinction of several endemic or indigenous species a rich heritage of this subcontinent. The study of bioprospecting and biodiversity is gradually gaining momentum as reflected in the formation of National Bioresource Development Board of the Government of India, in view of the realisation that the diverse genotypes are our resources which need to be judiciously tapped and conserved for our national development. The science of bioprospecting, i.e. exploring and utilising bioresources has become the focus of attention with its tremendous impact on agriculture, horticulture, forestry and medicine. Leaving aside commercial and medicinal species, the study of biodiversity is essential for securing genotypes resistant to biotic and abiotic stresses, simply because of the fact that in nature, following the dictum of evolution, in the struggle for existence, just as every action has its reaction, plants develop its own method of resistance the defence. The stress effect and stress resistance, susceptibility and tolerance go hand in hand. The phytoalexin, the proline, the polyamine, the heat shock protein and even restriction endonucleases are all natural defence mechanisms in plants. A knowledge of the extent of gene pool, permitting an understanding of the spectrum of wild genotypes, containing all these defence genes in nature, are exploited in our agriculture. The analysis of genotypic diversity is thus essential for evolution of elite species and for sustainable utilisation of our resources. 2.4.0 Methods of analysis
The diversity of biological system, especially in plants, can arise out of different genetic and environmental factors, both internal and external. The analysis of biodiversity is, in a true sense, the analysis of genetic diversity. For this analysis of genetic diversity and identification of genotypes, different methods are in vogue, as the two stable and morphologically diverse forms differ in their genetic features major and minor. Over and above, the chromosome characteristics, which may not be able to resolve cryptic details, DNA characteristics provide distinct evidence of diversity. In fact, DNA fingerprinting as well as chromosome fingerprinting utilising multiple fluorescent gene probes hybridized in situ on the chromosomes, have immense potential, especially in the documentation of diverse resources and their origin. It is based on the premises that each individual has a unique DNA pattern. In DNA fingerprinting, the DNA difference or the polymorphism of the genome can be detected by variable number of short repeat sequences arranged in tandem. Such short sequences (4-5 or 10-60 bp), the microsatellites or minisatellites, can detect simultaneously a large number of loci through molecular hybridisation. Such complex fingerprint pattern is specific to an individual. Lately, amplified fragment length polymorphism (AFLP) procedure has also been used for detecting diversity and is regarded as a more powerful and productive technology. 2.5.0 Targets for analysis and documentation
The analysis of biodiversity, need not necessarily cover the entire spectrum of biodiversity, it should be restricted at the initial stage to certain categories of species.
December 11, 2003
l
11
Biodiversity need In the analysis of plant diversity, documentation should cover all aspects of plant biology (morphological, anatomical, physiological, cytological), which are to be recorded along with the most crucial feature, the DNA fingerprint and the molecular documentation. At the initial stage, the programme can be concentrated principally on: (i) (ii) (iii) Endemic species Species that are endemic to the East Asian region and are of special value, including mangroves. Species of economic value such as spices, gums, resins, beverages and oils including coconut and other palms. Threatened species that are on the verge of extinction This category includes several species of economic value and certain wild relatives as well as lesserknown varieties of cereals. These genotypes are gradually facing extinction due to introduction of high-yielding varieties for mass consumption. The aromatic varieties of rice, except Basmati, so frequently cultivated earlier in this region, have become a rare commodity, making room for aggressive high-yielding varieties. Their documentation through fingerprinting as authentic sources of potentially desirable genes is essential. Apart from their academic and applied value, it will be a safeguard for maintaining patent rights wherever applicable, to check biopiracy. Species of medicinal value Mention may be made of the fact that out of 4,000 plants recorded from Ayurveda, 100 plants have so far been patented. Out of the 45,000 known species of herbs, 16,000 have been mentioned in Ayurveda. The Chinese and Japanese have made 45 per cent and 20 per cent respectively of herbal patents as compared to negligible number in India. Agricultural and plantation crops. Conservation of biodiversity
(iv)
(v) 2.6.0
A. In situ conservation The best method of in situ conservation of areas rich in bioresources is the designation of areas as Biosphere Reserves (BR) as well as natural sanctuaries, such as of orchids. The regions of BRs are protected from human interference. Those areas can be considered as natures playground where dynamics of evolution can be studied. Biosphere Reserves Several areas so far have been identified in India as potential BRs. These include: (i) Mysore Plateau Wynad in the Nilgiris with the Silent Valley (ii) Kanchendzonga National Park on Sikkim (iii) The Nanda Devi Sanctuary (iv) Valley of Floowers (v) Kedarnath in Uttar Pradesh (vi) Simlipal and Jeypore Hill Forest stretch in Orissa (vii) Kanha National Park, Madhya Pradesh
12
l
December 11, 2003
A K Shar ma (viii) North Island of Andaman and Jarawa Tribal Reserves (ix) Sundarbans in West Bengal (x) Namdapha, Lalichopra, Pakku, Tawang and Welong in Arunachal Pradesh (xi) Gulf of Mannar in Tamil Nadu, and (xii) Tura Ridge in Meghalaya (a) Monitoring of BRs Biosphere Reserves, because of the absence of human interference, remain undisturbed and the environment with its ecosystem reflects the dynamics of evolution. The origin and death of genotypes is a common feature of such natural reserves. Through struggle for existence and natural environmental changes, genotypes adapted to changed niches sur vive with the gradual elimination of the unfit. As such, documentation of the flora and fauna of the biosphere should be a continuing process to record the dynamicity of species change in evolution. Along with establishment of Biosphere Reserves, which has already been achieved, the continuous documentation and monitoring with exploration of resources is essential. ( b ) In situ conservation other than in BRs In addition to Biosphere Reserves, germplasm centers as well as orchid sanctuaries, which normally harbour a wide variety of genotypes, certain species with high medicinal and economic value with strict ecological preferences, including stress environments, such as alpine, semi-alpine or even desert regions need to be preserved in situ. In view of their wide importance, coupled with the fact that their preferences are very specific in a restricted set-up of nature, their conservation in situ is essential for propagation and sustainable utilisation. In order to increase the number of individuals of such species, tissue culture may be resorted to along with hardening of plants. Reserves can be created with such plants in one or more than one areas representing special ecological niches. The taxa requiring growth in such special areas in West Bengal (in situ) should include Daphne cannabina, Allium wallichii, Allium strachyii, Aconitum sp., E himalaya and Vaccinium sp. B. Ex situ conservation Attention is to be focused on a large number of medicinals, which due to their therapeutic value are gradually becoming rare and facing extinction as a result of over-exploitation from natural habitats and absence of systematic cultivation. Wild and other species of these genera need to be preserved for widening of their gene pool. Fortunately for legumes, the focus is widespread and conservative programmes are attended. (a) The Cucurbits serve both as vegetables and medicinals, and have wide distribution in West Bengal. Concerted effort is needed to collect wild varieties of Cucurbits in this zone - the group, which undoubtedly is going to be one of the most important families yielding drugs and vegetables for the future. Of the tropical resources, Cucurbits now occupy a prominent position in the western world.
December 11, 2003
l
13
Biodiversity need (b) Other medicinals include W ithania somnifera, Hemidesmus indicus, Centalla asiatica, Evolvulus alsinoides, Phyllanthus sp., Zingiber sp. (Ginger family), Amaranthus sp. and Piper sp. Under the targets for conservation, over and above, the categories listed, there are several other categories of plants in this part of the world, the genotypes of which need to be conserved, such as, (c) Plantation crops like tea, coffee, rubber, palm, cardamom, jute, Cinchona and others. All these crops are being cultivated on a wide-scale, and research and development of these categories of plants are supposed to be under the jurisdiction of different government departments and agencies. However, excepting the National Bureau of Plant Genetic Resources (NBPGR), where germplasms are being maintained, majority of the other research stations are principally dealing with cultivated crops without necessarily having the wild species and genotypes being maintained and conserved, as in allied species of Corchorus, Cinchona, Camellia and others. In fact, conservation of the entire gene pool of these crops needs to be mandated from all our bioresources. Enrichment of Biodiversity With the powerful tools at hand, scientists are now engaged in moulding genetic architecture of plants thus leading to enrichment of genetic vis--vis biodiversity, in addition to natures own mechanism of enrichment through mutations and recombinations. Genetic manipulation both through mutations and genetic engineering i.e., vertical and horizontal gene transfer have paid very high dividends for agricultural crops. Despite such a strong base of genetic and gene manipulation in India, no serious attempt has so far been made for the enrichment of genetic vis--vis biodiversity of medicinal crops in this subcontinent. Only in the recent years, attention has been focused to improve herbal plants conferring resistance to biotic and abiotic stresses through horizontal or direct gene transfer and simultaneously augmenting the active principle. The medicinal plant resources of India offer enormous scope for the enrichment of genetic diversity in India. The potential of genetic manipulation in other economic and plantation crops, too, are enormous. The powerful tools of manipulation both for vertical and horizontal transfer of genes can conveniently be geared towards enrichment of diversity, which is the natural heritage of humanity.
14
December 11, 2003
CHAPTER IV
CONSERVATION MEASURES FOR BIODIVERSITY WITH SPECIAL REFERENCE TO IMPORTANT CROPS OF WEST BENGAL
A K Ghosh
Centre for Environment and Development 329 Jodhpur Park, Kolkata - 700 068. cedkolkata@sify.com
3.1.0
Introduction
The conceptual frame for any conservation measure may start with the process of identification of causes for biodiversity loss. Globally, six major causes have been identified viz., human population growth and its pressure on natural resources, inequity in ownership and access to natural resources and sharing benefits, inadequate knowledge and inefficient use of information, introduction of exotic species & varieties in agriculture and forestry, economic system and policies undermining value of information, legal and institutional system promoting unsustainable exploitation. (UNEP, 1995). It does not, however, enlist the impact of consumerism on biodiversity conservation. 3.2.0 Context, Methods and Approaches Each country will have its own objective but the context may differ with regard to the action programme. The aim, however, will be an integration of all essential components. Action plan can only succeed if adequate public awareness is generated across the country. Obviously, choice of methods and tools for management of biological resources will depend upon the extent of awareness. Understanding value of conservation at civil society level, in the level of private and public leadership and in government circles is vital. A multitude of methods is available for managing biodiversity, the purposes being as follows:
l l l
Protection of target species, genetic strains or habitat; Produce goods and services from biological resources; and Facilitating equitable distribution of benefits.
The approaches may be either in situ or ex situ. While in situ approach can protect species varieties and the habitat, it involves establishment of Protected Areas (PA) in carefully selected localities in the form of reserves, sanctuaries, and national parks. It offers protection to landscape and seascape. Such PAs need a management strategy. In situ protection of agro-biodiversity, however, will be wider in scope. Protecting seeds or crops or forest tree species outside PA system demand a wide public participation. Ex situ approach demands removal of the species and varieties; breeding, storage, cloning or rescue, are tools to ensure such an approach. Botanical Gardens, Arboretum, Zoological
December 11, 2003
l
15
Biodiversity Conservation measures Parks, Aquaria and Seed-Banks serve the purpose for ex situ protection. Microbial culture collections also provide another method for ex situ protection. The strategic planning process includes a well-defined action plan. UNEP outlines steps for strategic biodiversity planning as follows: Box 1: Steps for strategic biodiversity planning 1 . Getting organised: Establish the institutional framework; designate leadership; create the participatory approach; form the interdisciplinary and the inter-sectoral team; assign a budget. 2 . Assessment: Gather and evaluate information on the status and trends of the nations biodiversity and biological resources, laws, policies, organisations, programmes, budgets and human capacity. Create a preliminary statement of goals and objectives, identifying gaps, conduct a first review of options to close gaps, and make a rough estimate of costs and benefits and unmet needs associated with a national biodiversity programme. 3 . Developing a strategy: Determine goals and operational objectives; analyse and select specific measures that will close the gaps identified in the assessment; further consult and modify until consensus is reached on acceptable targets and mechanisms; characterise stakeholders and what they can do; write a statement of the strategy consisting of the actions and investments called for to meet the goals and objectives; at this stage consult closely with other conservation and development plans and sectors, including conducting a national dialogue with all interested stakeholders. 4 . Developing a plan of action: Determine which organisations (public and private) will take charge of implementing specific activities included in the strategy, where, by what means, and with what resources (people, institutions, facilities and funds). Identify time phases for action. 5 . Implementation: Launch activities and policies in practical terms. Partners take responsibility for particular elements of the plan and biodiversity planners become biodiversity implementers in the key ministries, non-governmental organisations, communities, indigenous groups, business and industry involved in the planning process. 6 . Monitoring and evaluation: Establish indicators of success, determining which organisation(s) will monitor which factor(s) and the methods that will be employed. Monitoring should track the status and trends of biodiversity (species, genes, and habitats and landscape), implementation of policies and laws, implementation of specific strategic actions and investments, and the development of needed capacity (people, institutions, facilities and funding mechanisms). 7 . Reporting: Determine what types of reports are needed, who is responsible for reporting, and agree on format, content and timing of the delivery of documents. Types of reports might include:
16
l
December 11, 2003
A K Ghosh Annual status reports to the national chief executive, parliament, and the people; Country study; National strategy; Action plan; Five-year status report on biodiversity and biological resources; and Periodic reports to the Convention, the UN Sustainable Development Commission and other international forums.
l l l l l l
3 . 3 . 0 Socio-economic Strategies Increasing emphasis has been given on social intervention. The extent of indigenous knowledge on biodiversity has never been properly documented in many parts of the world. Knowledge stretching over many generations is often connected with a direct stake. An intimate relationship between application of ecological knowledge and belief system implies an intimate association with nature; often such knowledge is difficult for western science to understand (UNEP, 1995). However, it is vital that knowledge practice belief complex of indigenous peoples as it relates to biodiversity management is fully recognised. Peoples participation in biodiversity conservation has been increasingly focused over last the decade. Local community can participate in the follwing: l Information gathering; l Consultation; l Decision making; l Initiating action; and l Evaluation. Field-testing with this approach for peoples participation has already yielded results in many parts of the developing countries including India. The outcome of such participation can be in two ways: sensitising local people in a methodological way about the need for conservation of living resources for their survival and empowering local community to document their resource base with a scientific approach. Village level Peoples Biodiversity Register (PBR) has now been advocated in the Biodiversity Act, 2002 of India published in February 2003. Excellent examples can also be cited from Joint Forest Management (JFM), which was legally acknowledged in Indias National Forest Policy, 1988. The process has sustained over last 15 years to a variable degree in different parts of India. An example from West Bengal is given below (Table 1).
Table 1: Conservation Efforts Forest Protection Committees (FPC) Eco Development Committees (EDC) Watershed Committees (WSC)
Source NBSAP, West Bengal, 2002, p. 28
December 11, 2003
l
10 districts 2 districts
3545 FPCs 99 EDCs 52 WSC
17
Biodiversity Conservation measures On the other hand, participatory approaches to linking biodiversity conservation with local, social and economic development is yet to get started in India. Global Environment Facility (GEF) supports the Integrated Conservation Development Project (ICDP) in many developing countries. In a very different context, results of World Bank supported Integrated Eco-Development Project (IEDP) aimed at increasing economic development of forest villagers in selected protected areas to lessen the burden on forest and augment biodiversity, is yet to emerge. In West Bengal, Buxa Tiger Reserve (BTR) was one such target area. Unless micro-planning at village level is done to meet community interest, rather than individual households interest (which runs contrary to forest conservation in many case), such projects may not yield desired results. To ensure effective peoples participation in conservation programme, whether inside or outside the protected areas, right incentives must be given to the local community. In some countries like Ecuador, community-based ecotourism have succeeded. 3 . 4 . 0 Legal measures for Conservation of Biodiversity in India Kothari and Singh (1992) analysed in a matrix system the legal coverage of 11 different aspects of biodiversity in India viz., identification, protection, access, uses, trade, release, IPR etc (Table 2).
Table 2: Legal coverage of various aspects of biodiversity in India Sl. No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Type of activity Identification Protection in situ Protection ex situ Access/extraction Use Trade Breeding/cultivation/ multiplication Introduction/augmentation/ re-introduction Release Movement Intellectual Property Rights Wild fauna N W W P W W W P N W N Wild flora N W P P P W P P N P N Domestic fauna N N N N W P P P N P N Domestic flora N N N N N W P P N P N Genetic materials N N N N N P P P P P N
N = Not covered; P = Partially covered; W = Well covered Source: Kothari and Singh (1992)
The situation is apt to change in some areas since enactment of Biodiversity Act, 2002. Access to foreign collectors is to be restricted by the Act but it also calls for functioning of BMC at local level. Who is to ensure a process of benefit sharing that is yet to be defined?
18
l
December 11, 2003
A K Ghosh 3 . 2 . 0 West Bengal Scenario 3 . 5 . 1 Agro-Climatic Zones West Bengal can be divided in to 6 agro-climatic zones. The different agro climatic zones in the state (Table - 3) provide scope for utilisation of land for agricultural, horticultural, medicinal and aromatic plant cultivation.
Table 3: Agro Climatic Zones: West Bengal Northern Hill Zone Terai Tista Alluvial Zone Gangetic Alluvial Zone Vindhayan Alluvial Zone Red Lateritic Zone Coastal Saline Zone 2.8% (Darjeeling district) 14% (Jalpaiguri, Kochbihar) 19.7% (Uttar Dinajpur South 24 Parganas) 14.4% 32% (Western Districts) 17.1% (Medinipore, South 24 Parganas)
Agriculture being the mainstay of rural economy, an insight into the current practices and past record may help to elucidate the point. District-wise crop cultivation varies due to differential temperature, rainfall and soil condition. But in general both in terms of types of crops and varieties within such type have drastically changed between pre 1960s and post 1960s period. The advent of the Green Revolution, while augmenting net food production led to a process of homogenisation of agricultural biodiversity across the country. The immediate necessity is prioritisation of areas for on-farm conservation. Seed Banks and Germplasm Banks, unless maintained with due protocol, may not serve the purpose for wider areas. Local seed banks for free exchange of farmers varieties on the other hand may provide the easiest access route (once the farmers are motivated). Lack of proper care of pulses and oilseed varieties at the Research Station at Berhampore has practically led to disappearance of such varieties over the years. 3 . 5 . 2 Species Diversity The state of West Bengal occupying 2.7 per cent of the geographical area of India possesses 10 per cent of faunal and 20-45 per cent of floral diversity of the country (Table - 4).
Table 4: West Bengal: Species Diversity FAUNAL DIVERSITY Groups 15 Groups 7 Species 8708 FLORAL DIVERSITY Species 3580 Percentage: India 20-45% Percentage: India 10%
Note: West Bengal occupies 2.7% of total geographical area of India

December 11, 2003
l
19
Biodiversity Conservation measures 3 . 5 . 3 Diversity in Agriculture and Animal Husbandry In the agriculture and animal husbandry sector, a rich assemblage of varieties could still be located. The loss of indigenous varieties in rice has been one of the major areas of concern; so is the case with smaller millets. The agro-climatic zone demands varietal conservation in on-farm situation. As late as in the year 2002, the state presents a rich array of varieties of vegetable, fruit crop, spices, plantation crop, fibre crop and flowers besides cereals, grains and pulses. In the livestock sector, indigenous varieties appear to be fewer in number but significant in performance (Table 5, 6 & 7).
Table 5: Varietal Diversity of Non Cereal Crops Number Vegetable Potato Brinjal Cabbage Cauliflower Tomato Ladys Finger Cucumber Fruit Crop Mango Banana Guava Pineapple Litchi 2+ 25 18 22 17 15 11 150+ 25 8 6 7 Medicinal plants Flower Fiber Crop Plantation Crop Spices Chilli Ginger Coconut Arecanut Jute Mesta Number 21 2+ 5 3 2 10 Numerous varieties 750 (75 commercially collected)
Table 6: Varietal Diversity of Cereals and Grains: West Bengal Rice Finger millet Wheat 400 (5556 Pre-Green Revolution period) Several 2 Table 7: Breeds of Livestock: West Bengal Cattle Goat Sheep Poultry One: Siri fum (Darjeeling) Three: Black (24 Pgns); Brown (Malda); White Bengal (Dinajpur) One: Garol (South 24 Parganas) One: Assel (Bankura, Birbhum, Purulia)
3.6.0
Conser vation Measures
The state has 34 per cent of forest area under different categories of PA system stretching over Darjeeling Himalaya to Sundarbans (Table - 8). Effects for conservation with peoples participation (FPC, EDC) is significant.
20
l
December 11, 2003
A K Ghosh
Table 8: Protected Area Network North Bengal South Bengal Biosphere Reserve (BR) National Parks (NP) Wildlife Sanctuaries (WLS) Tiger Reserve (TR) Sundarbans In West Bengal PA system occupies 34% of State Forest And 4.6% of Geographical Area 11 15 11 15 15 12 BR, TR, 3 WLS
3.7.0
Causes of Loss
In spite of PA network and conservation efforts, a significant loss of biodiversity is recorded in both forest and non-forest areas (Table 9).
Table 9: Causes of Loss Forest Land l Habitat loss l Habitat fragmentation l Weed infestation l Loss of Animal Corridor l Grazing of cattle l Unregulated Non-Timber Forest Produce (NTFP) removal l Poaching Non Forest Land l High Yield Variety (HYV) intensification l Loss of pollinators due to pesticide l Prawn seed collection and loss of fin fish juveniles l Loss of wetlands l Uncontrolled tourism l Unregulated medicinal plant collection
Taking an overview of the situation, what could be the best use option of biodiversity resource in a sustainable manner? Steps that can be taken immediately may include:
l
PBR at least in one block each in all the districts (out of 341 blocks of 19 districts).
A recent study carried out by ENDEV-Society for Environment and Development shows the potential of documenting and saving farmers varieties. This case study of Nadia district is discussed here in details (Table 10)
December 11, 2003
21
Biodiversity Conservation measures

Table 10: Diversity in Non Forest Area in Nadia village ecosystem Crop Agricultural Crop Pulses Oil Seed Vegetable Spices Fruit Fiber yielding Sugar yielding Flower Fodder Green manure Horticultural Crop Flower Fruit Sylvicultural Crop Timber Wild 36 127 7 39 7 26 25 62 39 31 25 19 4 11 4 11 46 33 54 55 53 8 4 38 8 7 2 1 2 3 1 4 23 2 3 1 2 1 3 3 2 29 4 6 1 2 10 4 23 7 4 2 2 6 1 13 10 75 13 26 4 4 9 3 1 11 6 60 11 25 2 2 7 3 1 Species No. Common Distribution Sporadic Rare Varieties Indigenous Variety
The figures clearly indicate the potentiality of documenting and utilising such resources through a participatory approach of knowledge and material sharing to ensure propagation of crop diversity.
l l l l l l
Documenting crop varieties and farmers choice Policy change in Agriculture with reference to seed conservation Cultivating potential plant species (medicinals and aromatics) Assessing effectiveness of current PA system State wise campaign for conservation through print and visual media Networking Agriculture, Forest and Fishery Departments with the nodal point being the Department of Environment.
The proposed State Biodiversity Board, District Committees and Biodiversity Management Committee at the Panchayat level can consider a carefully drawn strategy planning keeping in view of the areas of concern and actions, as discussed above.
22
December 11, 2003
Response
RESPONSE
Debal Deb ENDEV Society for Environment and Development 329 Jodhpur Park, Kolkata - 700 068. debaldeb@wildmail.com Biodiversity includes not just genera and species but also ecosystems, landscapes and genetic diversity within species. As Dr A K Ghosh indicated, loss of biodiversity implies erosion of all components of living things and systems. Such erosion is caused primarily by various forms of industrial development and for commercial profits. Erosion of the biodiversity base results in the marginalisation of ecosystem people and their traditional knowledge base regarding biodiversity. The impact of modernisation and industrialisation of agriculture on different folk crop varieties, has over the past two decades, raised concern among agronomists and ecologists. Conservation specialists have acknowledged the key role of folk crop varieties or landraces in sustainable agriculture, and called for conservation of the genetic diversity of these crops. Since replacement of folk varieties by modern High Yield Variety (HYV) crops is perceived by most national governments as a criterion of development, marketing and promotion of HYV continues in most developing countries, even in places that are still rich in folk crop varieties. Erosion of crop genetic diversity has assumed awesome proportions in the case of rice in the Indian subcontinent. According to National Bureau of Plant Genetic Resources (NBPGR) records, the West Bengal Rice Research Station at Chinsurah had until 1970, an accession of about 5556 rice varieties 1, of which about 3500 varieties were sent to International Rice Research Institute (IRRI), Manila, during the time period between 1975 to 19832 . No official record is available to estimate the number of extant varieties that still survive in farmers fields. However, over the past six years, an inventorial survey by the Centre for Interdisciplinary Studies (CIS), Barrackpore and ENDEV-Society for Environment and Development, has recorded and accessed 314 folk rice landraces. These landraces have remarkable adaptations to local environmental conditions. The range of adaptations is unlikely to be found in modern varieties developed in vitro. Dry land varieties like Kelas and Bhutmuri need no irrigation during cultivation. A few lowland varieties like Lakshmi Dighal can grow up to 18 feet above water in seasonal wetlands. A unique rice variety is Jugal, each spikelet of which encapsulates, within a lemma and palea, two (sometimes three) seeds, each with a functional endosperm and embryo. All these farmer landraces are being maintained in Vrihi Beej Binimoy Kendra at Beliatore, Bankura, a non-government rice gene bank in eastern India that promotes in situ conservation of these landraces by free distribution to farmers. Vrihi has donated many of these landraces to several organisations to establish local ex situ seed banks. Similarly,
1 2
NBPGR, personal communication Guevarra 2000, in litt

December 11, 2003
l
23
Biodiversity Conservation measures ENDEV has established such seed banks in Ashurali, 24 Parganas (S) and in Ushagram, Nadia district. About 35 morphological and agronomic characteristics of each of the 314 Bengal rice varieties have been documented and published as a book entitled Folk Rice Varieties of West Bengal and copyrighted the document in the name of farmers and scientists. This copyrighted public document allows free use of the material for non-commercial research but prohibits any commercial use. However, erosion of crop genetic resource is not experienced by rice alone. Several indigenous varieties of pulses, oil seeds and millets have already disappeared from our state. Sonamug, a variety of pulses has become highly endangered, and is now found only in a few farms of Maldah district. A unique drought-tolerant variety of sugarcane is grown only in a few farms of Purulia district. On the other end of the biodiversity spectrum, unique habitats and ecosystems like sacred groves and sacred ponds are fast disappearing from the village landscapes owing to the inroads of modernisation. Several sacred ponds and groves are known to house numerous rare, endangered, and endemic flora and fauna. In a 600-year old sacred pond in Bankura district, two new species of zooplankton have been discovered and a new record of a frog species has been made. The administration needs to give recognition and take genuine measures to conserve these unique monuments, which exemplify the interface between biological and cultural diversity. The state and district administrative authorities need to reconsider the adverse consequences of all development projects that mostly benefit the commercial interests at the expense of natural resources on which the poor depend for survival. The administration needs to call in experts, working in non-governmental organisations and individuals working in isolation, to promote conservation of the states biodiversity components.
24
December 11, 2003
Response
RESPONSE
Swati Sen Mandi
Bose Institute 93/1, Acharya Prafulla Chandra Road Kolkata 700009 swatisenmandi2001@yahoo.co.in
West Bengal presents a wide diversity of ecosystems starting from the saline estuarine region through the rich alluvial river bed consisting of wetlands and locked water bodies and the laterite soils of the districts of Purulia and Pashchim Medinipur to the foothills and high altitudes of the Eastern Himalayas in Darjeeling District. Plants growing under such diverse environmental conditions necessarily possess traits of abiotic stress tolerance, which, if incorporated into high producers (by breeding / properly worked out protocols of plant transformation) would provide improved valuable plants for high productivity. Massive urbanisation, at the cost of deforestation and loss of grazing lands has resulted in loss of natural plant habitat and thus loss of plant communities at large. Rapid industrialisation across the globe is bringing about deterioration in gaseous environment, water bodies and in the aquifer, which is adversely affecting plant survival. In addition to generating information for valuable genes in the available gene pool, precise characterisation of germplasm is necessary also in prior informed consent protocols and in resolving Intellectual Property Rights (IPR) conflicts to facilitate benefit sharing. Being the site of one of the two hotspots identified in India, Eastern Himalayas is home to a large number of indigenous plants, including medicinally important plants that need urgent attention for conservation. Possessing a wide range of ecosystems, plants in West Bengal have been found to posses a large number of defence genes and thus could provide valuable germplasm for developing varieties better suited to global climate change conditions. It is necessary to conserve and judiciously manage the use of rich plant diversity available in West Bengal, and indeed in northeastern India. Being a signatory of the CBD, and thus being committed to characterise and document components of biological diversity that are important for conservation and sustainable utilisation, India needs to develop, mandatorily, a system of dependable molecular marker technology that would precisely characterise valuable germplasm of the country. Conventional markers for characterising plant genetic resource use morphological / physiological / biochemical (viz. isozyme activity) parameters. Being variable in manifestation under varying environmental condition and also in different developmental stages of the plant, these parameters do not qualify for precise dependable markers for germplasm characterisation. An array of molecular techniques available over the past couple of decades have provided useful technology for precise characterisation of genomes through development of DNA fingerprint that is the ultimate in individualisation. DNA markers are considered particularly useful because DNA characters may be studied in all tissues of the plant, are unaffected by environmental changes and also remain detectable through changes in developmental stages of the plant; these are also insensitive to epistatic or pleiotropic effects. The methods used in genome analysis are rapid and reproducible and hence provide comprehensive DNA characterisation for
December 11, 2003
l
25
Biodiversity Conservation measures development of species-specific parameters as well as specific trait associated DNA markers. Isolated efforts in DNA fingerprinting of cash crops are being undertaken in some laboratories in West Bengal. Some crops that are being studied include Citrus (in Bidhan Chandra Krishi Vishwa Vidyalaya (BCKVV), Kalyani) bamboo and tea (in Bose Institute, Kolkata). A national network project on DNA fingerprinting of tea plants in Darjeeling and Assam using Random Amplified Polymorphic DNA (RAPD) technique and also the more recent technique (viz. AFLP) is also under operation in Bose Institute. In view of the importance of documenting plants (cultivated and wild) of West Bengal and the states in northeastern India, Bose Institute, Kolkata is striving to set up a Centre of Plant DNA Fingerprinting and Diagnostics for North East and Eastern India in collaboration with Universities and Research Institutes in eastern and northeastern India. This programme proposes to characterise (DNA fingerprint) the genomes of important plants in this region. Specific DNA fingerprinting patterns of the different plants will serve as documentation information of different species / varieties. Under the National Network programme on Characterisation and Improvement of Tea through Biotechnological Tools at Bose Institute, a DNA fragment has been identified that is found to be associated with drought tolerance in tea plants. The sequence of this marker (DNA fragment) has been recommended by the Department of Biotechnology (DBT), Government of India, for a product patent under the Patent Cooperation Treaty (PCT) route in India, Sri Lanka, Kenya, Japan, China, Taiwan and Korea. Plants with desirable traits need to be conserved. In situ conservation sites provide the best option, since under such conditions plants may retain their natural metabolites that in turn may be used for pharmaceutical / Ayurvedic drug development. Properly maintained bio-reserves also allow the natural process of evolution to continue unabated and this contributes to the natural development of (plant) survivors in the face of changes in environmental conditions; new and better species are thus expected to evolve in such undisturbed natural habitats. It is pertinent to mention that lack of awareness of the importance of plant germplasm often cause widespread destruction in local in situ plant conservation sites due to overexploitation of valuable plants by local inhabitants. Isolated efforts for setting up closely monitored (by scientists) farmers participatory onfarm conservation are being undertaken by scientists in the Universities of West Bengal. Several non-government organisations (NGOs) are trying to raise awareness among local women for organised use of plant germplasm in income generation programmes. As a back up facility to cope with germplasm loss in the in situ sites during natural disaster as well as due to anthropogenic activities, ex situ and in vitro conservation is important and has to be taken up. In situ, ex situ and in vitro conservation are underway in several laboratories of some universities and research institutes. At Bose Institute, in vitro conservation of vegetatively propagated plants under stressful (in cold) tissue culture conditions have been standardised. Development of synthetic seed from vegetative plant tissue has also been achieved.
26
December 11, 2003
CHAPTER V
THE INDIAN BIODIVERSITY ACT AND SUSTAINABLE USE AND EQUITABLE DISTRIBUTION OF BENEFITS FROM COMMERCIAL UTILISATION OF BIOLOGICAL RESOURCES
Biju Paul Abraham3
Indian Institute of Management, Calcutta Diamond Harbour Road, Joka, Kolkata 700 104
4.1.0 Introduction Rapid growth of new technologies in genetic engineering and biotechnology has led to an increased commercial interest in the wealth of biological resources and the traditional knowledge (TK) of developing nations. With genetic resources, associated knowledge and technologies being viewed as strategic wealth-generating assets, developing countries are beginning to realise their importance and assert their sovereignty over access to these resources. They now want commercial interests to seek prior approval for their use and provide a fair share of benefits generated from any genetic resources and the TK that they supply, to derive the greatest possible value from the utilisation of their biodiversity. These issues have arisen at a time when the accelerated growth of technological innovations, especially in the area of biotechnology, has been outpacing the capacity of nations to exploit the opportunities provided by the changing situation. Recent progress in biotechnology has enabled scientists to study genetic resources more effectively, leading to development of commercially viable new products. This, in turn, has brought global biodiversity prospecting to alarming levels.4 New biotechnology processes and innovations that find application across species and in a wide spectrum of varied industries have necessitated a holistic look at the different Intellectual Property Rights (IPRs) applicable to them. The new innovations call for equally novel legal and administrative structures, with laws applicable to genetic resources, and relevant TK being closely integrated and cutting across established legal boundaries. This can be done by putting in place a single policy framework that seeks to protect all life forms, various facets of biotechnology, and also lay the foundation for developing a single streamlined administrative structure for management of biodiversity and the TK. A simple and transparent legal regime would also allow industry to take informed commercial decisions based on clear understanding of legal issues. Developing nations today are responding to the challenge of balancing demands for western-style intellectual property (IP) protection while further consolidating indigenous capacities. They are establishing regimes that not only encourage the transfer of technology
3 4
Co-authored by Shamama Afreen, Indian Institute of Management, Calcutta Ministry of Environment & Forests, Government of India, 2002; Moran, 2000
December 11, 2003
l
27
The Indian Biodiversity Act but also allow for control over genetic resources and prevent biopiracy. Unlike western models, where grant of IPRs is seen as sufficient to promote technological innovations, these are unique in the sense that they seek to protect biological resources, traditional rights and indigenous knowledge in addition to granting IP protection. India is one such developing country that is working towards necessary changes in the IP regime to balance new and traditional rights. In a bid to fulfil its international obligations, India has promulgated the Biological Diversity Act, 2002, which seeks to protect biodiversity and encourage the sustainable use of biological resources. 4.2.0 The Context A large number of countries are amending their laws to incorporate the potential of new technology and also to comply with the stipulations of the Convention on Biological Diversity (CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO). Developing nations feel threatened by the inclusion of an option for patent protection for all life forms, such as plants and animals in Article 27(3)b of TRIPS, which states: Article 27. Patentable Subject Matter 3. Members may also exclude from patentability: (b) Plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This option intensifies the debate concerning IPRs for biological and genetic resources between the technology-rich North and the gene-rich South. Firms in the technology rich north have the technical capability to fully exploit the commercial potential of biological resources. Policy makers in developed economies want to implement international patent protection for genetically engineered products, because their firms face high research and development (R&D) costs. On the other hand, majority of bioresources and related knowledge, both crucial inputs to genetic R&D, are found in a small number of developing countries. Governments in the developing world are trying to achieve two goals: a . To acquire a fair share of the profits generated by foreign firms from commercial exploitation of new products developed using national biological resources and knowledge; and b. To protect national interests while conforming to international agreements, which now stipulate that national governments must protect the rights of those who develop new products using biological resources (e.g. Article 27(3)b of TRIPS). This exercise is being carried out at a time when firms in the developed world are accused of pirating and patenting biological and associated TK of indigenous communities from the biodiversity-rich developing world for profit, without equitably sharing benefits or appropriate transfer of new technologies.5
5
See also Dutfield, 2000; GRAIN & Kalpavriksh, 2002; Droege & Birgit, 2001 28
l
December 11, 2003
Biju Paul Abraham 4.2.1 Protecting Biodiversity and Traditional Knowledge Protection for biological resources through property rights legislation, such as patents, have traditionally been excluded on grounds of public morality, the need to encourage everyone from the smallest farmer to multinational companies to foster innovations and the need to prevent commercialisation of critical sectors like food and healthcare. Patents have long been associated with technological innovations and their application to life forms has triggered debates all over the world. With regard to biodiversity, IPRs mete out differential treatment to human and natures creation. 6 With the latter traditionally being excluded from patentability, genetically engineered life forms are being progressively patented with plants and more recently even animals coming under the patent net. While IPRs could arguably be extended to cover agro-biodiversity, voices have been raised against this trend from different quarters. Protecting biological resources is only part of the problem. The commercial utility of biological resources increases if its uses are known and have been tested. This knowledge is often held as TK by indigenous communities. Traditional knowledge is the knowledge held by and/or acquired by members of a distinct culture through the means of inquiry peculiar to that culture, and concerning the culture itself or the local environment in which it exists.7 TK has a number of different subsets, some of them designated by expressions such as indigenous knowledge, folklore, traditional medicinal knowledge and others. TK is dynamic in nature and is changing its nature and evolving all the time through interactions with the social and physical environment. Its commercial use raises IPR questions, whose importance is heightened by international trade, communications and cultural exchange. Specific definition and protection of the TK is necessitated by the push from commercial sector to control, manage and market the knowledge. TK is valuable, as it aids scientific research by helping identify pharmacologically important elements in a plant. Annual global sales of products derived from genetic resources lie between US$ 500 and US$ 800 billion annually.8 Though the TK has been increasingly exploited in recent times, it is not protected under any of the international agreements. Its protection is an issue of widespread debate in international forums including the WTO.9 Probably the most critical areas of conflict crop up due to developing countries wanting to implement relevant provisions of the CBD and their obligations under the WTO. These countries are increasingly concerned that the TK held by local and indigenous communities is now a constituent of the product discovery process of industrialised countries. This knowledge is, however, not given due recognition and protection by conventional IP protection systems. An important question needs answering: can IPRs as prescribed by TRIPS be used to protect biodiversity and the TK? The following arguments bring out the unsuitability of patents, copyrights and trade secrets.10
6 8 7 UNEP/CBD/COP/3/Inf.
33, Annexure 2 Kate and Laird, 1999 9 Posey and Dutfield, 1996 10 Dutfield, 2001; Ragavan, 2001
December 11, 2003
l
Walden, 1995
29
The Indian Biodiversity Act a . Patents Traditional knowledge is held and generated collectively while patent law attributes inventiveness to individuals efforts. In other words, patents require an inventor to have legal entity. Although TK is part of the public domain, an individual affecting a new and non-obvious modification to it can patent the invention. It is thus not necessary that the collective nature of TK production and ownership can protect it from patenting. Patent applicants, through documentary evidence, must show that their innovation is the result of a single act of discovery. Indigenous communities cannot protect information relating to TK or protection of biodiversity, if it is not the result of specific historic act of discovery. Indigenous knowledge, being part of the public domain and being trans-generational and communally shared, is therefore not protectable. Patents also motivate commercialisation and distribution. Indigenous communities may however, be largely concerned with prohibiting commercialisation and restricting use and distribution. Patents recognise only market economic values and ignore spiritual, aesthetic, or cultural - or even local economic - values. Indigenous people may value such information as they are linked to their cultural identity and symbolic unity (Posey, 1997). b. Copyrights Copyright necessitates identification of an author thus posing problems in many traditional societies. Copyrights are meant to benefit society through the granting of exclusive rights to natural and juridical persons or creative individuals, not collective entities such as, indigenous people. 11 In other words, creative expressions and collective innovations of traditional communities being ineligible for protection may legally be treated as free inputs for industrial R&D and the copyright industries. Copyright normally requires works to be documented. However, this is not so with folkloric expressions as they are usually passed on orally from one generation to the next. Moreover, the entity asserting its copyright - or indeed to claim any other IPR must have legal standing which collective groups like rural communities usually lack according to national legal system. c. Trade Secrets While many traditional societies commonly share knowledge, it cannot be discounted that healers and other specialist knowledge-holders may possess knowledge that they would want to conceal from the world. Legal action may be used to force a company to pay compensation if it obtains such information illicitly. Conceivably, a considerable amount of TK could be protected under trade secretlaw. However, the problem here is that if the inventor chose to commercialise his innovation as a trade secret, the growth of ideas may be hindered. Enforcing legal rights would also require the holder of the knowledge to prove that steps had been taken to ensure that the knowledge was protected as a secret. This could prove to be a problem in the case
11
Boyle, 1996 30
l
December 11, 2003
Biju Paul Abraham of TK. Further, simultaneous development of innovations similar to ones own may emerge and be protected affecting the interest of the company or the inventor having the trade secrets. Opponents of patenting often overlook the fact that useful information would become trade secrets if patenting is disallowed. Patenting forces an invention to become public knowledge, thus allowing other researchers to investigate knowledge from the new invention. An effective regime for protecting biodiversity and traditional knowledge should provide for the following, if it seeks to effectively uphold the interests of developing countries 12 : 1 . Establishment of property rights for all actors involved in biodiversity management. Instead of protecting only the interests of corporate biotechnology firms, it should also uphold the interests of indigenous communities who have maintained the biological resources and also hold knowledge associated with it. This would involve assigning proper rights both for the resource held as well as associated knowledge. 2 . Non-monopoly rights that recognises that biodiversity related innovations are the handiwork of various actors and each needs property rights over his inventions. So while firms can commercialise products produced using TK associated with biological resources, the indigenous community that provided the knowledge would get a share of the benefits. This allows different property rights systems to exist simultaneously. 3 . Recognition of non-commercial interests - This respects the desire of communities to refrain from commercialising their TK. It recognises that not all communities see monetary gains as the sole driving force behind the use of biological resources and TK. 4 . Be effective in implementation This takes into account the broader context of a nations interests as well as its international obligations and requires that policy is effective not just on paper, but in actual practice. 4.3.0 The Indian Biodiversity Act
Responding to the new international regime of national sovereignty over biological resources ushered in by the CBD, the Indian Government formulated the Biological Diversity Act, 2002. The Act acknowledges the importance institutions of local governance, such as Panchayats, in managing biodiversity and affecting benefit sharing. However, in spite of the above features, the Act has several flaws. One such significant deficiency is that it lacks focus and makes excessive claims. It aims at regulating use of all biological resources through the entire expanse of the country. This would be a stupendous task anywhere in the world; it is quite impossible in a biomass-based civilisation such as ours13 . It requires all foreign citizens or corporate bodies to seek permission of the NBA for any use or survey of Indias biological resources.
12 13
Cullet (1999) Gadgil, 2000

December 11, 2003
l
31
The Indian Biodiversity Act The Act further stipulates no person who is a citizen of India or a body corporate, association or organisation, which is registered in India shall obtain any biological resource for commercial utilisation or bio-survey and bio-utilisation except after giving prior intimation to the SBB concerned. It further clarifies that the provisions of this section shall not apply to the local people and communities of the area, including vaids and hakims, who have been practising indigenous medicine. However, it does not define local people and local communities, leaving it to the bureaucracy and the rules to be formulated.14 It also leaves it to the discretion of the Government authorities to exempt other normally traded commodities. These arrangements are clearly inadequate and could lead to exploitation by parties with commercial interests. The most prominent aspect of the Act is that it brings the countrys biodiversity and associated TK under the regulation of the proposed NBA. Experts consider it totally unfair as it amounts to government control, read bureaucratic control, over knowledge. 15 Since a large part of the knowledge is in the public domain and is acquired through the process of research, experimentation and observation, hence it cannot be brought under the purview of any authority, leave alone NBA. It is further pointed out that the Bill is based on a framework in which the government acts as a monopoly power, the sole regulator and benefactor. The Act also overlooks the applicability of other legislation to access to biological resources and their sustainable use and development and does not seek to harmonise its provisions such that they do not contradict other relevant laws like the Drug and Cosmetics Act, Plant Varieties Protection (PVP) Act and Farmers Rights Bill, Geographic Indicators Bill, etc. Moreover, it does not provide any mechanism for recognising assertions of benefit claimants and granting them rights. It does not specify whether they can adopt measures against grant of IPRs on genetic resources or knowledge taken from them. An analysis of the Indian Biodiversity Act, in terms of the four criteria mentioned above, reveals some shortcomings in the Act that would need to be rectified, either by amending it, or while rules and regulations are framed for its implementation. In terms of proper establishment of property rights, the Act does not lay down detailed guidelines for assessing and assigning property rights related to biological resources and traditional knowledge. These tasks are left to the NBA, which will be required to establish detailed rules and regulations in this regard. To be really effective, the Act must assign property rights in a manner that protects the rights of all those who have contributed to the development of a commercially significant product. The Act must be discriminate enough, first to recognise the contributions that various parties make to a new invention or product, and then assign commensurate rights. The Act also does not lay down guidelines for the assignment of non-monopoly rights. Unlike the PVP Act, the Biodiversity Act does not recognise the rights of commercial firms and those of indigenous communities as being separate. It also does not lay down
14 15
Sharma, 2000 (Srinivas, 2000) 32

l
December 11, 2003
Biju Paul Abraham guidelines for assessment of contributions made by firms or communities to individual inventions and for proper sharing of rewards and recognitions for these contributions. There is also no proper recognition of non-commerical interests in the Act. The Act calls for prior intimation to the SBB before obtaining resources for commercial use or bio-survey (Article 7). Equitable sharing of benefits arising out of utilisation of genetic resources is to be ensured by the NBA (Article 21.3). The Act does not recognise noncommercial interests of traditional communities. This is unlike legislation in other parts of the world, which recognise such rights. Costa Rica and the Organisation of African Unity (OAU) recognise the non-commercial interests of their people and acknowledge that receiving monetary returns is not the only force that drives innovations. The Biodiversity Law of Costa Rica grants the local communities and indigenous people the Right to Cultural Objection and allows them to resist access to their resources and related knowledge for cultural, spiritual, social, economic or other motives (Article 66). A similar effort is made by the OAU by giving the local communities the Right to Refuse Consent and Access to their biological resources, knowledge and technologies so as to protect their natural or cultural heritage (Article19). In case the local communities fear that the given access would be detrimental to their socio-economic life, or their natural or cultural heritage, then the law allows them to withdraw consent or restrict activities related to such access (Article 20). Effective implementation of the Act is another area of concern. The Act requires the setting up of a NBA, which would advise the Central and State Governments on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of the utilisation of biological resources. The law also provides for prohibition or restriction of such activities that may prove detrimental or contrary to the objectives of conservation and sustainable use of biodiversity (Article 24.2). To be really effective, the NBA needs to ensure that the rules and regulations that it frames are implemented fully. For example, documentation of TK could be counterproductive if it allows foreign firms to gain insights into the uses of biological resources without due acknowledgement or benefit sharing. Documentation of knowledge should be accompanied by strict monitoring of its use in order to ensure that benefits are shared. In the absence of such monitoring, it might be better not to document the knowledge at all. It is necessary that the Indian Biodiversity Act be made more comprehensive so that it can take up all possible aspects of protection of TK and conservation and sustainable use of biodiversity. It is essential that the Biodiversity Bill recognise the rights of traditional communities and acknowledge the enormous contributions that they have made towards the conservation, development and sustainable use of plant and animal genetic resources. It should also provide for protection of biological resources as per customary practices and laws of the concerned communities. Communities should be given the right to protect their TK related to plant and genetic resources and receive equitable share of benefits arising from their use. Their participation in local and national level decision making on matters related to conservation and sustainable use of such resources should be encouraged.
December 11, 2003
l
33
The Indian Biodiversity Act A major drawback of the Act is that it does not recognise the non-commercial interests of indigenous communities with respect to their biological resources and their traditional knowledge. It is important that they be granted the right to refuse access to such wealth, if they feel this permission would have detrimental effects on their cultural, spiritual and social heritage. There should also be scope for withdrawing consent or restricting activities that exert such harmful influences. They need to incorporate provisions that would allow traditional communities to refrain from accessing and prevent access to their genetic resources and knowledge even if it meant monetary losses. In order to encourage conservation and sustainable use of biodiversity, both the pieces of Indian legislation need to put in place a comprehensive framework of incentives. Provisions must be added to award fiscal, scientific-technological and other kinds of incentives to activities or programmes carried out by people who contribute to achieving the above objective. In addition to establishing training programmes and research projects that encourage conservation and sustainable use of biodiversity, the laws should promote investment in this direction. Attempts to reform current Indian legislation so that it effectively upholds national interest and encourages sustainable use of resources could benefit from the experience of other developing countries to protect their biodiversity and traditional knowledge. It is evident that the effective implementation of the Indian Biodiversity Act will prove to be a major challenge and there is much work that lies ahead.
34
December 11, 2003
CHAPTER VI
THE NATIONAL BIODIVERSITY ACT: ISSUES, PROBLEMS AND PROSPECTS

Joy Dasgupta
National University of Juridical Sciences Aranya Bhavan, 10A, LA Block, Salt Lake, Eastern Bypass, Kolkata 700 098 nujs@cal3.vsnl.net.in
5.1.0
Introduction
India is one of the twelve mega-diversity countries in the world and is extremely rich in biological diversity. India is privileged to have a very high level of endemism. Though India is a recognised biodiversity-rich country, till very recently no appropriate legal and policy framework for the conservation / sustainable usage of biological diversity was available. The laws and policies in this regard have been highly sectoral in nature, in the sense both the wildlife and the forest laws have concentrated only on a very small portion of the Indian landscape. In the case of the Wildlife Protection Act, it confines itself only to around 4.6 per cent of the land area and the Forest Act confines itself to around 23 per cent of the land area. Thus, there is a desperate need to develop an overarching legislation that would go a long way in conserving biological diversity both within forested and non-forested landscape. The process started way back in the seventies with the enactment of the Wild Life Protection Act, and in some sense, the decade of the seventies and the eighties as the decades of wild life conservation. The focus, however, started shifting in the nineties towards biodiversity conservation with the CBD setting the tone for the decade. India became a party to the convention in 1994 and from then onwards started the process of drafting an appropriate legislation that would fulfill Indias international obligations and also work towards the conservation of biological diversity. Parallel to this process, the drafting of the National Biodiversity Strategy and Action Plan (NBSAP) was initiated to provide the blue print of how to conserve and sustainably use the biological diversity. These two processes have almost simultaneously come to a conclusion in 2003. 5.2.0 The National Biodiversity Act, 2002
The Biological Diversity Act, in India which was enforced in 2003, after nine years of deliberations, has two broad themes running through it, which are as follows: (a) Access/benefit sharing; and (b) Conservation/sustainable usage of biological resources. To fulfil these multiple mandates the Act proposes a three-tier administrative structure: (I) The National Biodiversity Authority (NBA)
The authority headquartered at Chennai has the responsibility of regulating access to

December 11, 2003
l
35
Legislation on Biological Diversity biological resources for commercial purposes by foreigners/ non-resident Indians/ Multinational Corporations. Research Projects for academic purposes, which are approved by the Central Government, are exempt from this Access Regime. This process of granting access involves the issuance of a prospecting license to the would-be bioprospector concomitant upon an adequate benefit sharing regime with the local communities that possesses knowledge about the resource. The authority also has the right to penalise persons / institutions in case of non-compliance. The authority has the responsibility also to take steps that it deems to be adequate to conserve biological diversity including the notification of threatened / endangered species as the case may be. The NBA may also advice the Central Government on biodiversity related issues. It also has to ensure that environmental impact assessments are carried out in the case of projects that may have an impact on biodiversity conservation. (II) The State Biodiversity Board (SBB) These boards, which are to be constituted at the state level, are supposed to perform virtually all the functions of the NBA at the state level. In case of the NBA, access was about regulating foreigners using Indian resources and in case of the SBB, is to regulate the access of Indians both individuals and companies, who are interested to commercially access biological resources. The benefit-sharing regime concomitantly has to be overseen by the SBBs. The conservation function is probably a bit better developed in comparison to the NBA. In this regard it is the SBB, which have the authority to declare biodiversity heritage sites taking into account the biological importance of these areas. This is indeed very significant and in many ways should be the fulcrum of the conservation initiatives that should be put in place after the passage of this legislation. These biodiversity heritage sites should ideally cover large landscapes and may emerge as an important category of protected area for conservation of biological diversity. (III) Biodiversity Management Committee (BMC) This is the lowest rung of the three-tier hierarchical set up envisaged under this Act. These would be local bodies defined by the Constitution or other relevant legislation including appropriate Central or State Legislation. The BMC can levy an amount from bio prospectors in their jurisdiction. The BMC is also entrusted with the job of actually managing / conserving biological diversity in the geographical area under their jurisdiction and probably it is the most important function that has been entrusted to any of these three bodies. 5.3.0 Discussion The Act, though a commendable effort as a pioneer legislation in the field of conservation and sustainable use of biodiversity, suffers from many shortcomings. The biggest drawback is probably the very high level of centralisation that has been envisaged in this Act. Fear is that it may lead to the creation of just another bureaucracy, which may not yield the desired results. Three-tier structure vests the top of the structure i.e. the NBA with too much power. The role of the SBB is kind of unclear especially with regard to the declaration of biodiversity heritage sites. There are very few clear-cut guidelines in this regard. The BMC also need to have far greater powers than currently envisaged as they
36
l
December 11, 2003
Joy Dasgupta are in the frontline of biodiversity conservation and they need to be more empowered in this regard. There is also one more major problematic issue i.e. defining what constitutes the local community. This is a critical question and needs to be properly defined. The Act also probably has very little synergy with the State Biodiversity Strategy and Action Plan. This is something that needs to be done, especially in the case of designating biological heritage sites. The Act also probably needs to be far more conservationoriented. The impression one gets is that the Act is all about access to biological resources with some measure of regulations for conservations juxtaposed along with it. It is to be ensured that conservation is of equal importance as conservation of the biological material is the real issue, it is after all the raw material and all the other issues like access / benefit sharing are of secondary importance. This is something we definitely have to keep in mind. The last issue, but certainly not the least, is the question over biological resources occurring in landscapes that cover more than one state. This is something that needs to be planned, for given the fact that there are many biodiversity-rich landscapes, which extend across different states. 5.4.0 Conclusion
The Act is no doubt extremely important in terms of conservation of biodiversity but also suffers from inadequacies like over-centralisation, poor definitions and lack of emphasis on conservation. Thus, what we need to do in the future is to try and overcome these inadequacies. The thrust should be more on conservation / sustainable usage rather than on access / benefit sharing. That should be our way forward.
December 11, 2003
37
The Indian Biodiversity Act
RESPONSE
BIOLOGICAL DIVERSITY ACT AND DIFFICULTIES POSED IN IMPLEMENTATION

Meena Panicker
National University of Juridical Sciences Aranya Bhavan, 10A, LA Block, Salt Lake, Eastern Bypass, Kolkata 700 098 meenapanicker@rediffmail.com
Introduction The Indian legislation, Biological Diversity Act, 2002, aims at protection of the biological diversity of the country and regulation of access to the same and its use in a sustainable way .The present paper examines a few issues, which may evidently act as obstacles in its implementation. The paper is divided into three parts. Part I deals with international treaties, which play a significant role in the area of biological resources. Part II enumerates some of the key features of the Biological Diversity Act, 2002. Part III provides the conclusions. Part I - INTERNATIONAL INSTRUMENTS AND INDIAS OBLIGATIONS A number of international instruments have specific applicability to the Indian Act. These are: 1 . The Convention on Biological Diversity, 1992 2 . The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 1994. 3 . International Treaty on Plant Genetic Resources, 2001 4 . Convention for Protection of new Varieties of Plants (UPOV), 1991 The Convention on Biological Diversity (CBD) India, upon its ratification of the CBD, is vested with an obligation to implement the treaty by enacting legislation at the national level. This obligation, on its part, is partially fulfilled with the adoption of the Act. However, the effective implementation of the Act necessitates an examination of some of the two fundamental issues under the CBD, which are technology transfer and IPRs. What can be termed as technology under the CBD? As per Article 2 of the CBD, Technology includes biotechnology. It further states that Biotechnology means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use. These definitions, as given in the use of terms in Article 2, however, do not cover all technological applications in relation to biological resources as laid down below:
38
l
December 11, 2003
Response (a) Those relevant to the conservation and sustainable use of biodiversity; (b) Those, which make use of genetic resources and do not cause significant damage to the environment; and (c) Those, which make use of genetic resources including technology protected by patents and other IPRs. Under the CBD, there is no distinction between technologies under government control and those that are subject to proprietary interests. Most of the biotechnology companies in the US are in the private sector. As per Article 15, each signatory to the Convention exercises sovereign rights over its natural resources. State Parties shall provide access to its resources, provided that access is based on mutually agreed terms. The provision also requires that State Parties shall take necessary measures, with the aim of sharing in a fair and equitable way the research and development and the benefits arising from the utilisation of biological resources with the originating nation. According to Article 16, each State Party undertakes to provide and/or facilitate access for and transfer to the other state parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources. The access to and transfer of technology should be under fair terms, including concessional and preferential terms. Article 19 mandates that nations, which provide the biological or genetic resources should be provided effective participation in biotechnological research activities. It also provides that each State Party shall take measures to promote and advance priority access on a fair and equitable basis to the results and benefits arising from biotechnologies based upon the genetic resources of the originating nation. Articles 15, 16 and 19 effectively acknowledge the need for IP protection in the biotechnology sector. However, the provisions mandate that property protected by IPRs should be subject to the Conventions provisions. This conclusion will lead to irreconcilable differences in between TRIPS and the CBD. These articles were widely criticised by the developed countries where biotechnology sector is strongly motivated. Relationship between the TRIPS and the CBD Article 27(3)(b) of the TRIPS Agreement provides that plant varieties shall be protected under a patent or an effective sui generis legislation or a combination of both. India opted for adoption a sui generic legislation by the passing of the Protection of Plant Varieties and Farmers Rights Act, 2001. However, there is no explanation in the TRIPS Agreement as to what constitutes an effective sui generis system. During the deliberations in the TRIPS Council in 2002 the general views on the relationship between the two Agreements were focused on the following: 1 ) Whether there is a conflict between the two; and 2 ) Whether there is a need to ensure that the two instruments are applied in a harmonious way.
December 11, 2003
l
39
The Indian Biodiversity Act The states expressed their views on the relationship, which may be summed up in three ways: i. There is an inherent conflict; ii. There is no conflict but the effective implementation can be done only through national measures; and iii. There could be a potential for conflict depending on the way the instruments are implemented nationally. The reasons for the inherent conflict, as pointed out by Kenya is as follows:
l
TRIPS reference to Article 27(3)(b) provides for the appropriation by the private parties of the genetic resources in a way that is inconsistent with the sovereign rights of the countries over those resources under the CBD; and TRIPS provides IPR protection of genetic material without ensuring the requirements of Prior Informed Consent (PIC) and benefit sharing under the CBD.
The reasons for no conflict, as projected by European Community, Japan and the United States of America are as under:
l
TRIPS and the CBD refer to different objects, purposes and subject matter. Granting of patent rights does not prevent the sovereign rights over the resources, PIC and benefit sharing; and No specific examples of conflict cited.
The reasons for a potential conflict were cited by Australia, Czech Republic, European Commission (EC), Japan, Norway, Brazil, India, Indonesia and Venezuela are as follows:
l l
There is considerable interaction and overlap; and Emphasis shall be on the issue on how TRIPS can be implemented in a way supportive of the CBD.
International Treaty on Plant Genetic Resources for Food and Agriculture, 2001 The Commission on Genetic Resources for Food and Agriculture is a permanent forum within the Food and Agricultural Organisation (FAO) where governments discuss and negotiate matters relevant to genetic resources for food and agriculture. The FAO Conference established the Commission in 1983, mandate of which was broadened in 1995 to cover all components of biodiversity of relevance to food and agriculture. The FAO adopted an International Undertaking on Plant Genetic Resources in 1983. The Undertaking was revised with the aim of working in harmony with the CBD. It is known as the International Treaty on Plant Genetic Resources for Food and Agriculture, 2001(hereinafter referred to as the FAO Treaty). The Treaty incorporates the following objectives:
l l
Conservation and sustainable use of plant genetic resources for food and agriculture; Fair and equitable sharing of benefits arising out of their use.
Apart from the objectives stated above, the Treaty acknowledges the contribution of farmers and their rights in the area. It further emphasises on the need to develop synergy among agriculture, environment and commerce to achieve the objectives.
40
l
December 11, 2003
Response Part three, Article 9 enumerates the farmers rights. The treaty recognises the enormous contribution of local, indigenous and farming community for the conservation and development of plant genetic resources throughout the world. 16 The responsibility for realising farmers rights vests with the national governments. Hence, each contracting party has to adopt suitable measures in this direction, which include protection of traditional knowledge, equitable participation in benefit sharing, and the right to participate in the decision-making at the national level on matters related to conservation and sustainable use of the resources. As per Part 3, the Article shall not be interpreted to limit the rights of farmers to save, use, exchange and sell farm-saved seed/propagating material. This provision is subject to national law as appropriate. A multilateral system is provided in the Treaty for access to the genetic resources and benefit sharing. The Authority to determine access to the resources rests with the national governments and is subject to national legislation. Access to plant genetic resources for food and agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements and with relevant national laws. Access shall be provided pursuant to a standard material transfer agreement (MTA), adopted by the Governing Body. Benefit sharing under the multilateral system is provided in Article13. The following mechanisms are provided in the Treaty:
l l l l
Exchange of information; Access to and transfer of technology; Capacity building; and, Sharing of monetary and other benefits of commercialisation,
Convention for Protection of new Varieties of Plants (UPOV), 1991 UPOV Convention is projected as an internationally acknowledged system for the protection of plant varieties. Indias attempt to join as a party to the Convention has however failed. Article 17 states about the restrictions on the breeders. Accordingly, no contracting party may restrict the free exercise of a breeders right for reasons other than of public interest. In any such case of restriction, contracting party shall take all necessary measures to ensure that the breeder received equitable remuneration. Article 15 of the Convention deals with exceptions to the breeders right. Breeders right shall not extend to the following cases:
l l l
Acts done privately and for non-commercial purposes; Acts which are experimental; and Breeding other varieties.
An optional restriction is placed on the breeders rights to permit farmers to use the variety for propagating on their own holdings, the product of the harvest, which they
16
Para.1 of Art.9
December 11, 2003
l
41
The Indian Biodiversity Act have obtained by planting on their own holdings. However, contracting party may exercise this exception within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder.17 Any state, which is a member or is seeking membership, shall have necessary laws within its territory to give effect to the provisions of the Convention. States can seek the advice of UPOV Council to make its laws in conformity with the Convention. Part II THE BIOLOGICAL DIVERSITY ACT, 2002 The aims of the Biological Diversity Act, 2002 are the following:
l l l
Conservation of biodiversity and bioassay; Sustainable use of its components; and Equitable sharing of benefits arising out of the use of biological resources.
Benefit claimers are defined as conservers of biological resources, their by-products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application. Equitable benefit sharing is defined as sharing of benefits as determined by the NBA. Research is defined as the study or systematic investigation of any biological resource or technological application that uses biological systems, living organisms or derivatives thereof to make or modify products or processes for any use. Sustainable use is the use of components of biodiversity in such a manner and at such rate that does not lead to the long term decline of biodiversity thereby maintaining its potential to meet needs and aspirations of present/future generations. Any research involving the biodiversity of the country, if planned by an NRI (individual/ firm), should be approved by the NBA. Results of the research are not to be transferred without the prior approval of the NBA. However, the transfer does not include publication of research papers, dissemination of knowledge in any workshop, if such publication is as per the guidelines prescribed by the central government. Section 5 of the Act deals with collaborative research. Collaborative research project shall conform to the guidelines by the Government of India and be approved by the same. It involves the transfer or exchange of biological resources or information between institutions including government sponsored institutions in India and such institutions in other countries. Agreements concluded before the commencement of the Act and in force, shall, to the extent the provisions of the agreement are inconsistent with the provisions of the Act or any guidelines issued there under be void.18 As per Section 6 of the Act, IPR application based on any information or research on a biological resource obtained from India shall seek the approval of the NBA. The NBA
17 18
Para.2, Art.15. This is known as farmers exemption which is distinct from the usage, farmers right, as it is used by FAO. Indias most advanced genetic engineering research laboratory estimating $20 million will be set up at the Indian Institute of Sciences, Bangalore on the basis of an agreement with Monsanto which will have access to the formers pool of expertise in the large number of biological science departments. Agreement is approved by the government of India. 42
l
December 11, 2003
Response may impose a benefit sharing fee or royalty. These provisions will not be applicable to any person applying for any rights under the PVP Act. The general scheme of benefit sharing envisaged in Section 21 is as follows:
l
Grant of joint ownership of IPR to NBA or where benefit claimers are identified to such benefit claimers; Transfer of technology; Location of production, R&D units in such areas which will facilitate better living standards to benefit claimers; Association of Indian scientists, benefit claimers and local people; Setting up of venture capital fund for aiding the cause of benefit claimers; and Payment of monetary or other compensation.
l l
l l l
Part III - Conclusions Some of the hurdles posed in the implementation of the Act may be as follows:
l
There is a need to emphasise upon decentralisation as the subject matter of the Act is aimed at operation at the grass root level; It is difficult to define local community in precise legal terms; Clear accountability is needed to strengthen the benefit sharing mechanism envisaged in the Act. This is exemplified by the attempt on the part of Syngenta, a Swiss based Agro-business Corporation and Indira Gandhi Krishi Vishwavidyalaya (IGKV), Chattisgarh to sign a Memorandum of Understanding (MoU) with respect to the Raipur collection of rice varieties; Valuation of traditional knowledge, to be effectively done, needs sufficient expertise in the area. The MERCK-INBIO Agreement between MERCK, one of the leading Pharmaceutical companies and INBIO representing the Costa Rican Government testify it. It also raises the issue as to how could we value the knowledge that is a transmission of knowledge from generation to generation; and A number of legislations are passed (or in the amendment process) by the Indian Parliament with overlapping features. These include the Plant Varieties Act, 2001, Draft Seeds (Amendment) Act, 2001 and the Indian Patent (Amendment) Act, 2002.
l l
December 11, 2003
43

Biodiversity

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Biodiversity

Uploaded by

Copyright:

Available Formats

Annexure

DECEMBER 11, 2003 KOLKATA

Proceedings of Round Table Discussion

Proceedings of Round Table Discussion

December 11, 2003

THE ROUND TABLE ON BIODIVERSITY CONSERVATION: SUMMARY OF RAPPORTEURS

Shri Shri Smt Shri

Joy Dasgupta Hirak Ghosh Meena Panicker Arupendranath Mullik

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

December 11, 2003

December 11, 2003

Proceedings of Round Table Discussion

BIODIVERSITY NEED DOCUMENTATION AND CONSERVATION

December 11, 2003

A K Shar ma 2.3.0 Bioprospecting and biodiversity Why study of gene pool?

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

December 11, 2003

3545 FPCs 99 EDCs 52 WSC

Proceedings of Round Table Discussion

December 11, 2003

Note: West Bengal occupies 2.7% of total geographical area of India

Proceedings of Round Table Discussion

Conser vation Measures

December 11, 2003

December 11, 2003

Proceedings of Round Table Discussion

Biodiversity Conservation measures

Proceedings of Round Table Discussion

December 11, 2003

NBPGR, personal communication Guevarra 2000, in litt

Proceedings of Round Table Discussion

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

December 11, 2003

Proceedings of Round Table Discussion

December 11, 2003

Cullet (1999) Gadgil, 2000

Proceedings of Round Table Discussion

Sharma, 2000 (Srinivas, 2000) 32

December 11, 2003

Proceedings of Round Table Discussion

Proceedings of Round Table Discussion

December 11, 2003

THE NATIONAL BIODIVERSITY ACT: ISSUES, PROBLEMS AND PROSPECTS

The authority headquartered at Chennai has the responsibility of regulating access to

Proceedings of Round Table Discussion

December 11, 2003

December 11, 2003

Proceedings of Round Table Discussion

The Indian Biodiversity Act