The Hindu Business Line : Biological Diversity Act — Implementation not tough enough

The National Bio-diversity Authority does try to achieve transparency but falls short when it comes to giving details of approvals. And instead of restricting access to biodiversity, it seems the legislation often facilitates it.

Kanchi Kohli

It has been five years since India passed the Biological Diversity Act in both Houses of Parliament in December 2002. Presidential consent followed a couple of months later. This legislation was drafted to fulfil India’s commitment to the Convention on Biological Diversity (CBD) that was signed in 1992.

It was also meant to be a response to check the alarming increase in bio-piracy and restrict bio-based trade. Its mandate was also to look at conservation of biodiversity and traditional knowledge as a whole, and not just through sector-specific laws on forests, wildlife, water and pollution.

In the half decade of its existence, several facets of the Act’s framework have unfolded, from the point of view of implementation, perceived priorities and intended direction. It is an opportune time for some reflection and assessment.

Conservation

The Biodiversity Act draws from the objectives of the CBD. Its agenda is conservation of biodiversity, its sustainable use and equitable sharing of the benefits from such use. To achieve this, it put in place a three-tier institutional structure: a National Biodiversity Authority (NBA), based in Chennai; State Biodiversity Boards (SBBs) in every State; and Biodiversity Management Committees (BMCs) at panchayat/municipality levels. It lays out clear procedures for access to biodiversity, further elaborated through the 2004 Rules, and has clauses on conservation and knowledge protection. The Ministry of Environment and Forest (MoEF) is the nodal agency.

Before this legislation, access to biological resources for research, commercial utilisation and seeking Intellectual Property Rights was an unregulated domain. Today, there is a system, but clearly centralised in design. If a foreign entity (defined in the Act) wants access to India’s biodiversity (wild or cultivated) and/or associated traditional knowledge, approval of the NBA is mandatory. The NBA needs to “consult” the relevant local BMCs before granting an approval.

An Indian entity, on the other hand, needs only to intimate the SBB, which can lay down some conditions. If an IPR is involved, approval from the NBA needs to be sought. Interestingly, collaborative research projects between a foreign and Indian entity and involving transfer of plants and animals germplasm outside India are exempted from seeking approval under this Act.

In this background, it is worth taking a look at the experience with the implementation of biodiversity law and people’s reactions to it.

Limited Scope

First, a look at the role defined for communities through the formation of BMCs. The parent legislation gives such committees a fairly strong profile, with the role of conservation, documentation and management of biodiversity. But they have no decision-making powers. It gets further diluted and problematic when the main role prescribed by the Rules for the BMCs is that of preparing People’s Biodiversity Registers (PBRs). So the thrust becomes documentation, with communities as data-providers.

The PBR exercise gets a bit more complex when the documentation needs to be done in a prescribed technical format designed for integration with a nationalised database. With no legal protection or clearly defined village-level controls the recorded knowledge is open to move hands easily: local to global.

There were lacunae in the content of the legislation from the beginning. But the implementation experience has heightened these concerns. Some critics may even go so far as to call it realisation of the real intent!

Clear Trend

The implementation of the Biodiversity Act in the last five years has shown a clear trend, with two features most in focus: Access and Documentation. Procedures for access have been laid out in the Rules; sample agreements have been drafted; and over 90 approvals (including those related to jatropha seeds, export of jute seeds or breeding of the Murrah buffalo) have been granted by NBA. Hardly any BMCs are in place, so there is no scope of ‘consultation’, even if it is desired.

This goes contrary to the Ministry of Environment and Forests’ aim of implementing empowering clauses that endeavour to respect and protect the knowledge of local people, and, where possible, integrate biodiversity concerns into cross-sectoral plans, as well as the declaration of Biodiversity Heritage Sites (BHS) for areas sensitive to both wild and cultivated diversity.

There are no guidelines yet in place for forming BMCs or declaring a BHS, though efforts are being made to identify rare and threatened species of flora and fauna, and repositories as well as a listing of normally traded commodities.

Redressal mechanism

Another critical lacuna in the legislation is that of the redressal mechanism prescribed. While there are procedures for settling disputes between NBA and SBB, or two SBBs, the same has simply not been envisaged where the BMCs or communities are concerned. There is nothing in the Act or Rules which sets procedures to settle disputes in case a BMC disagrees with the decision of the NBA, or if there is a disagreement between two BMCs. Like for all other common citizens, the High Court is the only option.

The NBA does try to achieve transparency through its Web site but falls short when it comes to giving details of approvals. There is no mention of the geographical locations, conditions under which permissions are granted, and so on. It would be impossible for citizens to invoke the revocation clause in court if these details are not known. It would be impossible to prove that the conditions are not complied with or if the operations are against public interest.

A lot has changed for India’s development scenario since we first signed the CBD and agreed to its objectives.

The ten years of drafting, in the light of opening the country’s doors to investment, and the next five of its implementation in the 9 per cent growth paradigm has taken its toll on the legislation. Signs of facilitating access to biodiversity, rather than srestricting it, are evident. Conservation of biodiversity and traditional knowledge might, it seems, have to wait a little longer!

(The author is member of Kalpavriksh Environment Action Group and is based in Delhi.)