Emerging issues, practical challenges and lessons learned in the Indian context
Legal Consultant, National Biodiversity Authority India,
Ministry of Environment, Forest and Climate Change
In a serious attempt to demystify several issues that had emerged in the implementation of Biological Diversity Act, 2002 (BDA) and Rules, 2004, the National Biodiversity Authority (NBA) in consultation with the Ministry of Environment, Forest and Climate Change (MoEF & CC) geared up to develop the unprecedented piece of legislation viz., the Guidelines on Access and Benefit Sharing (“ABS Guidelines”). This legislation serves as a fundamental tool for regulating access and usage of biological resources** by the implementation bodies. It intends to provide clarity on the obligations involved in using the biological resources for different purposes. Further, it provides the modes of benefit sharing, stages in application processing and benefit sharing options, thereby bringing more transparency into the benefit sharing mechanism. However, several administrative and legal difficulties have emerged post enactment of this legislation. This paper shares the personal experience of the author in understanding the practical challenges and overwhelming complications in the implementation of ABS. The article stresses the importance of having an unambiguous legislation in place, which is fundamental to having a robust access and benefit sharing mechanism. It concludes by giving possible solutions to avoid administrative hiccups and litigations from the lessons learned. It is with optimism that the experiences shared will help, in whatever limited way it can, in foreseeing the challenges involved in developing a robust legislation on ABS and adequately gear up to overcome them.
Keywords: Biological Diversity Act, National Biodiversity Act, ABS Guidelines
The author is a lawyer with special interests in environmental and international law. She provides legal advice and assistance to various Governments and environmental organisations on the implementation of environmental laws specifically related to biodiversity, intellectual property and traditional knowledge. Her recent experience has been to provide inputs on biodiversity bills focusing on Access and Benefit Sharing for the Environment Ministries of Namibia and Vietnam.
** Any reference to protection of biological resources in this paper may be read to include protection of knowledge associated with the biological resources as well.