Biodiversity: read the fine print

Each year 22 May is celebrated as International Biodiversity Day, and is followed two weeks later by Environment Day, 5 June. Between these important dates on the environment calendar, there are numerous celebrations, awareness camps, and claims about the work that governments are undertaking to protect the environment. In parallel, any number of civil society organisations and private corporations too are keen to publicise what they’ve been doing for the environment in general, and biodiversity protection in particular. Thus, this is an appropriate time to review the passage and working of the Biodiversity Act in India.

Biological Diversity Act

Access to biological resources for research, and for commercial utilisation including Intellectual Property Rights was an unregulated domain until the Biological Diversity Act, 2002 was passed by the two houses of Parliament. With rising biopiracy and bio-based trade it was felt that serious checks were needed, and that these should have the force of law. It was also becoming clearer that legislation should be crafted so that the conservation of biodiversity is considered as a whole, and not only through the lens of sector-specific laws of forest, wildlife, water and pollution. Further, there was also a need to check the illegal access to natural resources and also the ‘theft’ of traditional knowledge based on these resources. All of these pointed to the need for comprehensive legislation around the principles of sovereignty and decentralisation for a more people-based conservation.

The push for the drafting of such legislation began almost a decade earlier, when India became signatory to the Convention on Biological Diversity (CBD) in 1993. The eventually notified Act clearly draws its objectives straight from the CBD, specifically, the conservation of biodiversity; the sustainable use of biological resources; and equity in sharing benefits from such use of resources. It set into motion a new institutional structure for the implementation of the Act by regulating access to products that impacted biodiversity, and by promoting conservation. A National Biodiversity Authority (NBA) has been established in Chennai, and the process of setting up of State Biodiversity Boards (SBB) in all states is ongoing. Biodiversity Management Committees (BMCs) are also being formed at panchayat, district council or municipality levels.

While many environmentalists were happy that the government had taken a first legal step to protect biodiversity, there was dissatisfaction over the actual provisions of the Act.

• Biodiversity ruled out

• Protecting biodiversity

There are conservation provisions of the Act which give power to the central government to make plans and strategies for Biodiversity; integrate these into sectoral planning, and so on. The Act also introduced the concept of Biodiversity Heritage Sites, to be developed into an interesting and different strategy for conservation of biological resources.

The law also put into place the various processes to be followed, especially by commercial entities, in order to access biodiversity. Foreign entities (which are defined specifically in the Act) wishing to access India’s biodiversity and/or associated traditional knowledge for research and commercial utilisation would need to apply before the NBA, who will review the application and mandatorily consult local BMCs before granting approval. Indian entities, for their part, needed to only intimate their State Biodiversity Boards and for sanctioning their applications, the role of the BMC is not in focus.

Protection diluted

When the Act was notified, it threw up mixed responses. While many environmentalists were happy that the government had taken the first legal step to protect biodiversity, there was dissatisfaction over the actual provisions of the Act. The special privileges granted to Indian companies raised questions; there were also concerns that the Act had practically sanctioned IPRs on biodiversity by outlining a process for accepting applications, screening them and thereafter approving such claims. The extremely limiting role for local communities in the decision making process laid out within the Act was also troubling to many. (see “Understanding the Biological Diversity Act: A Dossier”, available at http://www.kalpavriksh.org/).

There were surely perspectives that wanted to build on positives of the Act; and address such concerns in the implementing Rules. But this objective took a major beating when the Ministry of Environment and Forests issued the Biological Diversity Rules in 2004. It brought to light the MoEF’s complete disrespect to the role communities can play with reference to conservation of biodiversity as mandated in the Act itself. The Rules stated that the main objective of the BMCs is documentation of biodiversity and traditional knowledge through People’s Biodiversity Registers (PBRs). So, the formats would be given by the NBA and communities would be mere data providers for the PBRs; which they will have no control over (see: Biodiversity ruled out, July 2004).

With this, a significant part of the original intent in crafting the law itself was lost; the letter of the law had largely thwarted its spirit. Rather than establish a biodiversity protection mechanism, the law merely created a mechanism that regulated the use of biological resources, and even this regulation was drafted to be favourable to industry, in the process weakening the chances for better conservation through the Act. As a result, what we have witnessed over the years is a potentially conservation-oriented law being implemented in manner that has little regard for conservation, or for the local communities who have historically been far better champions of their local environment and whose lives are being impacted even today by the exploitative practices of outsiders.

Communities look at the fine print

Today the implementation of the Biodiversity Act is fully underway. The NBA is granting approvals for accessing biological resources even in those areas where there are no BMCs in place; this completely removes the opportunity for the mandatory public consultation needed before approvals are granted. Seventeen State Biodiversity Boards have been appointed, with little or no representation of communities. Madhya Pradesh, Karnataka, and Sikkim have also prepared their state level rules. Samples of agreements - to be signed between parties to access biodiversity - have been prepared; special government committees have been appointed on specific topics, such as ‘identification of threatened species’.

With this, it was always inevitable that local communities would begin to mobilise against the provisions and practices of the Act. For instance, many of the above-mentioned facts and concerns were discussed on 17 and 18 May 2007, at a workshop organised as part of the Campaign for Community Control over Biodiversity, at Bir, Himachal Pradesh for the northern region states. This campaign was initiated in 2004 when the Biodiversity Rules were issued; and several people traveled to Delhi, sat in a protest dharna before Paryavaran Bhawan (MoEF) and also submitted a memorandum raising local communities’ concerns over the rules. The Campaign has picked up pace since September 2006. The Bir meeting organised under the Campaign was titled Biodiversity Regulation: Legality and Reality. Participants gathered together to understand the lettering and implementation of the Biological Diversity Act, 2002 and its Rules of 2004. Many of the above mentioned concerns and more were raised.

The various groups gathered at Bir issued press releases in their own states on Biodiversity Day. They clearly articulated that local people must have a say in determining how best their local landscapes are to be managed. The CBD principle of national sovereignty, by which India claimed a right to its independent management of its biodiversity within the global framework, must further translate into community sovereignty for truly local level decision-making on resources and for application of local know-how.

The meeting also stressed an important point, one that is necessary to galvanise public support for environment protection. Merely understanding thep provisions of any law, without the corresponding attention to its implementation, is not enough. Access to biodiversity, and clearances for the use of biological resources are becoming predominant in the legal regimes being practiced by this law. Indeed, all environment regulation in India today suffers from this malaise; the state simply equates regulation with ‘process for providing clearances’. Therefore, it is critical that people recognise the issues related to the implementation of this Act (and others) and make it a part of the mainstream debate. Without this nuanced public voice, the environment will continue to be degraded; natural habitats will be lost, biodiversity sacrificed and people’s livelihoods put at risk.