Even as India signs new Biodiversity deal, concerns over undermining Biodiversity Act persist

Introduced in the Parliament in December 2021, the Biological Diversity (Amendment) Bill, 2021 pushes provisions that may not be in line with the latest global deal on biodiversity, and undermines institutional checks.

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EVEN as India has signed the Kunming-Montreal Global Biodiversity Framework deal to address the ongoing biodiversity loss, restore ecosystems and protect indigenous rights, the Union Government has been harbouring plans to amend the Biological Diversity Act, 2002 in a way that may dilute the institutional structure and checks contained within the Act.

Signed at the 15th iteration of the United Nations Biodiversity Conference by 188 countries, the agreement aims to protect at least 30 per cent of the world's lands, inland waters, coastal areas and oceans by 2030 (currently, only 17 per cent of terrestrial and 10 per cent of marine areas are under protection). Central to the agreement is ensuring that biological resources are used in a sustainable, non-exploitative manner, and benefits accruing from utilising these resources and the associated knowledge are shared fairly and equitably.

Meanwhile, the Biological Diversity (Amendment) Bill, 2021, introduced in the Parliament in December last year and sent to a Joint Parliamentary Committee soon after, has provisions that exempt AYUSH practitioners from certain provisions of the Act, raising concerns that the motive behind the amendment might be to increase the ease of doing business rather than strengthening the existing regime.

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What is the Biological Diversity Act, 2002?

The Biological Diversity Act, 2002 ('BD Act') was enacted pursuant to the UN Convention on Biological Diversity, agreed upon in Rio De Janeiro in 1992. The BD Act provides for the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the use of biological resources and associated knowledge through the mechanism of access and benefit sharing. It recognises the significant role of local communities and their knowledge of flora and fauna in the conservation and sustainable use of biodiversity.

The BD Act creates a decentralised three-tiered mechanism comprising the National Biodiversity Authority ('NBA'), the State Biodiversity Board ('SBB') and the Biodiversity Management Committees ('BMCs').

Any application for intellectual property rights involving biological resources occurring in India or associated traditional knowledge requires prior approval of the NBA. Its approval is also necessary for foreigners and foreign companies to access biological resources occurring in India and associated knowledge.

Indian citizens and domestic companies are required to intimate the respective SBBs before accessing the domestic biological resources for such purposes. An SBB may revoke or refuse access if certain activities would be detrimental to biodiversity conservation or unsustainable.

The BD Act mandates the constitution of a BMC within all local bodies for the purpose of discussing how to ensure sustainable use of local resources, and documenting such information in a People's Biodiversity Register.

Under the Act, the NBA and the SBBs have been mandated to consult BMCs while taking any decision relating to the use of biological resources and knowledge associated with such resources occurring within the territorial jurisdiction of the BMC.

Additionally, within their jurisdiction, BMCs have the power to levy charges by way of collection fees from any person accessing or collecting any biological resource for commercial purposes.

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What are the proposed changes to the Biological Diversity Act?

The Biological Diversity (Amendment) Bill was introduced by Union Environment Minister, Bhupendra Yadav in the Lok Sabha in December 2021 without seeking public comments, as required under the Pre-legislative Consultative Policy, 2014. One of the officially stated aims of the Bill is to bring more foreign investments in the chain of biological resources, including research, patenting and commercial utilisation.

The introduction of the Bill was met with objections against it by members of opposition parties for favouring the AYUSH industry and compromising the country's biodiversity. It was then sent to the Joint Parliamentary Committee for scrutiny, which submitted its report in August this year. As per an Economic Times report, the government has accepted most of its suggestions and plans to introduce an amended version of the Bill.

Tracing its origin, the Statement of Objects and Reasons of the Bill discloses that "concerns were raised" by representatives of the Indian system of medicines (AYUSH), the seed industry and other industries, and the research sector urging the government to reduce the compliance burden "in order to encourage conducive environment for collaborative research and investments, simplify patent application process, widen the scope of levying access and benefit sharing with local communities and for further conservation of biological resources."

The Bill expands the list of those exempted from giving prior intimation to the SBBs for accessing any biological resource or its associated knowledge for commercial utilisation. Earlier, exemptions were granted to local people and communities of the area, and vaids and hakims who have been practising indigenous medicine. The Bill proposes additional exemptions to AYUSH practitioners, cultivated medicinal plants and for holders of "codified traditional knowledge".

There are concerns that exempting the AYUSH practitioners would, in effect, give the AYUSH industry a free hand to use biological resources without having to compensate the communities. The Committee, however, did not scrutinise the exemption granted to AYUSH practitioners under this provision.

Objections were raised by the Union Ministry of Panchayati Raj against certain provisions of the Bill. In its submission to the Joint Parliamentary Committee, it stated, "[B[y excluding the codified traditional knowledge, the entire traditional knowledge goes outside the purview of the act which in a way contradicts the [UN Convention on Biological Diversity]."

The Ministry of Panchayati Raj further contended that the documentation of traditional local knowledge in the People's Biodiversity Register may in itself count as codification, thereby depriving those communities of benefits they would have received had they not done the documentation. "It gives a free hand to the users of the traditional knowledge at the cost of the communities", the Ministry submitted.

To get around this discrepancy, the JPC has recommended that "codified traditional knowledge" should be specified to mean the books listed in the First Schedule of the Drugs And Cosmetics Act, 1940, which hosts a list of 99 books of Ayurveda, Siddha and Unani medicine systems.

While granting approval to a foreigner or a foreign corporation to obtain biological resources or its associated knowledge, or for an intellectual property protection, the NBA has to ensure that the terms and conditions subject to which the approval is granted secures fair and equitable sharing of benefits. Under the Act, this is to be carried out according to mutually agreed terms between the person applying for such approval, local bodies concerned, and the benefit claimers.

The Bill removes the need for benefit claimers' consent from this provision, in addition to nullifying the authority of local bodies. The proposed amendment states that the terms shall be agreed between the person applying for such approval and the NBA (representing the BMC).

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What does the Kunming-Montreal Global Biodiversity Framework comprise?

The Kunming-Montreal Global Biodiversity Framework contains four goals and 23 targets that need to be achieved by 2030, and has been signed by 188 of the 196 countries which attended the UN Biodiversity Conference in Montreal, which concluded earlier this week. It emphasises a "whole-of-government and whole-of-society approach" to implementing the agreement.

At the core of the agreed framework is the aim of ensuring respect for and protection to sustainable use of biological resources by indigenous peoples and local communities. It places the responsibility on individual governments to ensure that these communities receive a fair and equitable share of benefits that arise from the utilisation of genetic resources.

Some of the clauses of the agreed framework might already be a part of the BDA and the 2004 Rules made under the Act. For instance, on the criteria for equitable benefit sharing, the Rules stipulate that the quantum of benefits are to be agreed upon considering the extent of use, the sustainability aspect, the impact and expected outcome levels, including measures ensuring conservation and sustainable use of biological diversity. The Rules also give power to the NBA to impose such terms and conditions as may be necessary for ensuring equitable sharing of the benefits.

The Kunming-Montreal Framework is a successor of the 2010 Nagoya Protocol on Access and Benefit Sharing, which lays down the international regime for access and benefit sharing, and mandates that access to biological resources cannot be granted without obtaining "prior informed consent", and the involvement of indigenous and local communities.

However, the latest framework takes a step further, requiring governments to take legal, administrative or policy measures to ensure that large and transnational companies and financial institutions regularly monitor, assess and transparently disclose their risks, dependencies and impacts on biodiversity.

It also requires governments to ensure "the full, equitable, inclusive, effective and gender-responsive representation and participation in decision-making, and access to justice and information related to biodiversity by indigenous peoples and local communities, respecting their cultures and their rights over lands, territories, resources, and traditional knowledge."

In its present form, the Biological Diversity (Amendment) Bill, 2021 might be in contradiction with the UN Convention on Biodiversity, the 2010 Nagoya Protocol and the 2022 Kunming-Montreal Framework. The latest framework will not be legally binding until its ratification by the Parliament, which is at liberty to alter the framework in any manner it deems fit. However, it remains to be seen whether the amendment would uphold the spirit of the agreed framework.

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Some of the other agreed upon targets in Montreal are:

• Ensure that by 2030, at least 30 per cent of areas of degraded terrestrial, inland water, and coastal and marine ecosystems are under effective restoration.
• Ensure that the use, harvesting and trade of wild species is sustainable, safe and legal, and preventing overexploitation, while respecting and protecting customary sustainable use by indigenous peoples and local communities.
• Ensure that the management and use of wild species are sustainable, thereby providing social, economic and environmental benefits for people, especially those in vulnerable situations and those most dependent on biodiversity.
• Take effective legal, policy, administrative and capacity-building measures at all levels to ensure the fair and equitable sharing of benefits that arise from the utilisation of genetic resources and from digital sequence information on genetic resources, and facilitating a significant increase of the benefits shared, in accordance with applicable international access and benefit-sharing instruments.
• Ensure urgent management actions, to halt human-induced extinction of known threatened species, and for the recovery and conservation of species, in particular threatened species.
• Minimise the impact of climate change and ocean acidification on biodiversity, and increase its resilience through mitigation, adaptation and disaster risk reduction actions