DRAFT ACCESS AND BENEFIT SHARING BILL

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DRAFT ACCESS AND BENEFIT SHARING BILL

• Presented to
• STAKEHOLDERS AWARENESS WORKSHOP
• MIM CAMPUS, 22 APRIL 2006

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Introduction

• ABS and International Agreements
• CBD, WIPO, Bonn Guidelines, Cartagena Protocol,
  ITPGRFA
• CBD declared genetic resources as subject to
  national sovereignty
• ABS Issues Conservation of biodiversity, IPR,
  farmers rights, Plant Breeders rights,
  community rights

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Introduction continued

• Malawi policies and legislation National
  Environmental Policy (1996) as amended in 2004,
  the Environment Management Act (1996), Forestry
  Act (1997), Fisheries Conservation Management
  Act (1997) and National Parks Wildlife Act
  (1992) as amended in 2004.
• EMA (1996) section 4 Government has control of
  genetic resources but the ownership of the
  resources reside in the people of Malawi. This is
  in accordance with the Malawi Constitution.

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Use of Biological Resources
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Use of Biological Resources

• Indigenous (Traditional) Knowledge Systems about
  Biological Diversity Issues
• Rich natural resources
• Some Misused
• Some Underutilized
• Some Over-utilized
• Local communities willing to take up challenges
  and improve their lives

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Use of Biological Resources

• Indigenous knowledge refers to a body of
  knowledge and beliefs built by a group of people,
  and handed down generations through oral
  tradition, about the relationship between living
  beings and their environment
• It is original to a particular physical
  environment and makes up a set of experiences
  that are generated by the people living in those
  communities

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Use of Biological Resources

• Indigenous knowledge has played a vital role in
  the conservation of biological and natural
  resources
• Certain trees and animals were spared due to
  certain reasons

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Use of Indigenous knowledge Systems

• Farming techniques practiced in those days
  assisted in the conservation

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Use of Indigenous knowledge Systems

• Traditional Medicines

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Use of Indigenous knowledge Systems

• Conservation of Individual Tree Species because
  of their intrinsic value
• Identified 36 uses of the Baobab Tree- Fruits for
  food, bark for ropes, leaves for vegetables,
  roots for medicines etc.

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Use of selected tree species
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Use of Traditional Knowledge Systems

• Traditional Bee Keeping

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Access to Malambe Fruits by Collectors

• Access by local communities is free by virtue of
  being local community members
• The Value Chain

Collector collects for free
Village Hands Ltd Production
Marketing Using Local Employees
Fruits sold to Village Hands Ltd, A community
Company
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Indigenous Knowledge Bio-prospecting
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Promoting Farmers Rights horticultural
production
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Benefit Sharing Mechanisms

• Fruit Collectors paid cash for fruits
• Crackers of fruits paid labour charge

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Impacts of Commercializing Biological Resources

• Over harvesting of fruits including cutting trees
  and branches
• Individuals and family households claim ownership
  of certain individual trees around their
  homesteads or in their gardens this led to
  conservation of certain trees

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Why develop ABS Legislation

• Policy and legislation gaps
• Uncoordinated institutional and stakeholder
  activities
• Inadequate capacity and institutional
  arrangements for the enforcement of provisions
  that exist on ABS in the country.
• Empowerment of local and indigenous peoples on
  ABS
• Biopracy monitoring and control

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Main Issues Addressed

• Conservation of Biological Diversity-key issue
• Institutional Framework on ABS
• Genetic Resources Board
• Access Benefit sharing
• Community and Indigenous Knowledge
• Farmers Rights
• Biodiversity Fund

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The Bill will not apply to

• the exchange of genetic resources, which are
  carried out by a local community of Malawi among
  themselves and for their own consumption
• approved research activities intended for
  educational purposes within recognized Malawian
  academic and research institutions.

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Key Definitions

• Access means obtaining, possessing and using
  genetic resources conserved whether derived
  products, and where applicable, intangible
  components or parts thereof for purposes of
  research, bio-prospecting, conservation,
  industrial application or commercial use
• Benefit Sharing means the sharing of whatever
  accrues from the utilisation of biological
  resources, community knowledge, technologies,
  innovations or practices as stipulated in part VI
  of this Act.

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Key Definitions

• Community Knowledge means the accumulated
  knowledge that is vital for conservation and
  sustainable use of biological resources and/or
  which is of socio-economic value, and which has
  been developed over the years by indigenous or
  local communities.
• Community Rights means those rights held by
  local communities over their biological resources
  or parts or derivatives thereof, and over their
  practices, innovations, knowledge and
  technologies.

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Key Definitions

• Farmer means an individual who practices
  farming, whether subsistence or commercial,
  excluding a juristic person
• Local Community means human population in a
  distinct geographical area, with control or
  custody over its biological resources,
  innovations, practices, knowledge, and
  technologies governed partially or completely by
  its own customs, traditions or laws

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Genetic Resources Board Composition

• The Genetic Resources Board which shall consist
  of
• The Chairman who shall be appointed by the
  Minister on recommendation of the Director
• Directors of several departments
• Academia representative
• NGO representative
• Traditional healers representative and
• Farmers representative.

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Genetic Resources Board Functions

• Review all applications
• Inventory making
• Make Recommendations to the Minister
• Review polices, legislation and international
  agreements
• Recommend to the Minister measures for
  harmonization
• Recommend bans restrictions or similar measures
  to the Minister to protect genetic resources. 

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Community Rights and Traditional Knowledge

• The local community are sole and lawful and users
  of biological resources in their communities
• Local communities to exercise the right to
  access, use, exchange or share resources
• No transfer of biological or intellectual
  resources to the detriment of the local
  community.
• Monitoring and enforcing innovations.
• Local community prior informed consent necessary
  before transfer of resources.

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Community Rights and Traditional Knowledge

• Local communities can refuse transfer if it will
  jeopardize their interests.
• Local communities can withdraw or restrict
  consent if it can injure their interests.
• Any costs communities incur from use of
  biological resources to be compensated.

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Community Rights and Traditional Knowledge

• The Board has power to
• -identify the types of common and collective
  achievements and intellectual rights that are
  recognized in each case
• -identify the communities to be recognized as
  residual title holders
• -identify and define the requirement and
  procedure necessary for the recognition of the
  collective achievements and intellectual rights
  and the title to the same
• -define a system of collective biodiversity
  registration and specific rights and obligation
  that arise from the entitlement.

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Farmers Rights

• Defining a farmer
• Board to promote awareness of farmers rights.
• Farmers shall have the right to
• Access to effective remedy
• Be compensated if any act causes damage to
  resources
• Capacity building to maintain community gene
  banks or conservation in normal household
  conditions

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Farmers shall have the right to

• receive exemption or reduction of import and
  export tax for equipment and raw materials for
  use in experimenting or implementing
  non-commercial plant improvement
• Obtain necessary remedy regarding pesticides,
  herbicides or any chemicals, or any genetically
  modified seed or propagation materials
  detrimental to ecology, environment, health and
  safe food production of the community
• receive royalty from the sale of seeds of any new
  variety.
• participate in research.

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Registrar and Register of Farmers Rights

• Functions of the registrar
• Register of farmers rights
• Licences can be issued on registered rights
• Any existing notices

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Farmers Rights Other Issues

• Persons entitled to make application
• Form of application
• Refusal of application non-entitlement
  non-compliance
• Duty of Holder of Farmers Rights to maintain
  reproductive material
• Rights of holder of farmers rights
•  Issue of licenses

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Access to Genetic Resources Access Application

• No collection or transfer unless beneficial to
  Malawi.
• Application for access in prescribed form
• Fees to be paid

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Access to Genetic Resources Other Issues

• Determination of Application
• Access agreement
• Local involvement in genetic resources research
• Prospecting fee
• Validity of access permit-3yrs renewable
• Board Custodian of specimens
• Communication of Decision Publication of access
  permits
• Access and collection for national scientific
  research.

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Intellectual Property Rights

• Communities to have free access to research
  results on intellectual and cultural knowledge.
• Public research agreement up to five years
  duration.

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 Access and Collection for Commercial Purpose

• No access for commercial purpose unless this Act
  complied with.
• Collector must have authorization to undertake
  commercial activities in Malawi.
• Collector must agree to pay for any damage caused
  by collection
• Fee for commercial collection
• Communities to be paid not less that 50
• Minister to issue permit for commercial
  collection
• Licence to be displayed

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  Transfer of Biological Resource or Community
Knowledge

• No transfer of access permit unless Minister
  authorizes.
• Application for transfer necessary.
• Board may authorize transfer subject to
  conditions
• If transfer refused reasons to be provided with
  reasons in writing
• Any discovery under permit to be disclosed to the
  Director

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Transfer of Biological Resource or Community
Knowledge

• Variation of conditions by the Minister
• Minister has power to suspend cancel or revoke
  permit
• Permit not Transferable
• Minister shall keep, manage and update a register
  of all access permits
• No transfer of resources without Material
  Transfer Agreement.

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Benefit Sharing

• Holder to involve Malawians in research
• Monetary and non-monetary benefits.
• Monetary Benefits
• Access fees/fee per sample collected or otherwise
  acquired
• Up-front payments
• Milestone payments
• Payment of royalties
• License fees in case of commercialization

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Monetary Benefits

• Special fees to be paid to trust funds supporting
  conservation and sustainable use of biodiversity
• Salaries and preferential terms where mutually
  agreed
• Research funding
• Joint ventures and
• Joint ownership of relevant intellectual property
  rights.

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Non-Monetary Benefits

• Sharing of research and development results
• Collaboration, cooperation and contribution in
  scientific research and development programmes
  particularly biotechnology research activities
  where possible in Malawi.
• Participation in product development
• Admittance to ex-situ facilities of genetic
  resources and to databases by participating
  institutions
• Institutional capacity building
• Strengthening capacity for technology transfer to
  Malawi

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Non-Monetary Benefits cont

• Transfer to Malawi of genetic resources knowledge
  and technology under fair and most favorable
  terms, including concessional and preferential
  terms where agreed
• Human and material resources to strengthen the
  capacities for the administration and enforcement
  of access regulations
• Training related to genetic resources with the
  full participation of Malawi and where possible
  in Malawi.

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Non-Monetary Benefits cont

• Access to scientific information relevant to
  conservation and sustainable use of biological
  diversity, including biological inventories and
  taxonomic studies
• Institutional and professional relationships that
  arise from access and benefit sharing agreements
  and subsequent collaborative activities and
• Joint ownership of relevant intellectual property
  rights. 

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Biological Diversity Fund Objectives

• the management and conservation of heritage
  sites
• compensating or rehabilitating any section of the
  people or resources economically affected by
  restriction imposed
• conservation of biological resources
• socio-economic development of areas from where
  such biological resources or knowledge associated
  thereto has been accessed subject to any approval
  granted in consultation with the local bodies
  concernedand
• meeting the expenses incurred for purposes
  authorized by this Act.

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Transitional Provision and Offence

• Any person carrying out any activities involving
  access to genetic resources shall within six (6)
  months from the commencement of this Act, will
  take all necessary measures to bring such
  activities under this Act
• Any person who contravenes any of the provisions
  of this Act commits an offence and shall be
  liable on conviction to imprisonment for a term
  of not more 18 months or to a fine of not less
  than K50, 000-00 and not more than K500, 000-00
  or to both such fine and imprisonment.
• Resources collected prior to this Act to continue
  to be long to Malawi unless benefits provided or
  law followed

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End

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