2. Forests, Biodiversity and Human Interface
• Forest ecosystems have evolved over centuries and are one of the most complex webs
of biological organisms
• Forest diversity encompasses not just trees but a multiplicity of biological organisms
namely plants, animals and microorganisms within them.
• Future of the forests depends on the health of these constituent parts and the
existence of the ecosystem as a whole.
• Forests continue to be a source of food, fodder, fuel and fibre for them. A vast, varied
and vibrant set of relationships (between the people and the forests) is manifest
through cultural expressions, spiritual associations and religious connotations
• While local communities have played a part in forest conservation, several species of
forest flora and fauna have also thrived and survived due to the absence of any
destructive human interference in their habitat.
• Today, forest biodiversity is increasingly threatened as a result of
deforestation, fragmentation and indiscriminate and unsustainable extraction of forest
produce for commercial purposes.
• The India State of Forest Report 2011 has shown an overall decline in forest cover in the
country. The core problem is of diversion of forest lands for non-forest uses.
• The diversion of primary or natural forests for monoculture plantations also comes at a
cost to diversity.
3. Access and Benefit Sharing
• Access is the permission to obtain and use genetic or biological
material or resources (GBMR) and the knowledge of its uses
• The international Convention elaborates on the other dimensions
of access as well, these are:
– access to genetic resources (GR) and traditional knowledge
(TK) of these resources from the South,
– access to technology transfer from the North and
– access to benefits derived from the use of genetic material.
• Over the years there has been a growing interest in germplasm
and local know-how about it from the scientific
community, formal researchers and those with commercial
interests
• Tribal and other forest-dwelling communities have always
accessed forest-based biological material for medicinal
purposes, self consumption, cultural uses, exchange and local
4. Biodiversity regime and its relevance
• The domestic biodiversity regime is meant to regulate both access
and benefit sharing (ABS)
• Local communities collecting forest produce do not need to intimate
the government body, i.e. the State Biodiversity Board (SBB), to
access resources, as domestic companies (whether small firms or
large corporations) are required to do before such access. [Section 7]
• Foreign nationals, institutes or companies need to get due permission
from the National Biodiversity Authority (NBA) under the ABS regime
for access to any Indian GR or TK
• Wild flora and fauna have been accessed by researchers, research
institutions and corporations interested in the curative, cosmetic or
other related properties of these species for a long time now
– critical ecological issues around sustainable extraction, endangering already
threatened species and habitat destruction
– questions of consent of tribal and forest dwelling communities and their
involvement in the overall decision-making process.
5. ABS, Biodiversity Act and Forests
• The National Biodiversity Authority (NBA) is the apex government body
under the Ministry of Environment and Forests (MoEF) entrusted with the
responsibility to implement the access and benefit sharing (ABS) regime
• Amongst its 15 members, it is required to have two ex officio members
from the MoEF, one of whom is either the Additional Director General of
Forests (ADGF) or the DGF. It has also set up an Expert Committee on ABS to
process access applications on a regular basis.
• The BD Act delineates that it is to be applied in addition to the laws
pertaining to forests and wildlife.
• This has led to a somewhat skewed interpretation by some State
Biodiversity Boards (SBBs) that the ABS regime will only apply to areas
outside the jurisdiction of the Forest Department.
• According to the BD Act, geographically it applies to the whole of India
• Its stated objectives of conservation, sustainable use, fair and equitable
benefit sharing, are particularly relevant for the forest ecosystems and the
people whose lives and livelihoods depend on them.
6. Types of applications for access
The NBA receives access applications in prescribed formats along with
the required fees:
• Form I: Application for access to biological resources and
associated traditional knowledge (Fee Rs. 10,000/-)
• Form II: Application for seeking approval for transferring results of
research (Fee Rs. 5,000/-)
• Form III: Application for seeking prior approval of NBA for
applying for intellectual property right (Fee Rs. 500/-)
• Form IV: Application for third party transfer (Fee Rs. 10,000/-)
• Some SBBs in their state-level Biodiversity Rules (such as the
Madhya Pradesh Biodiversity Board) also prescribe the Form I
format with a Rs. 100/- fee to be used by domestic companies for
giving the required ‘prior intimation’ to the Board when obtaining
any biological resource for commercial utilisation, bio-survey or bio-
utilisation. [Section 7 read with Section 24 of the BD Act]
7. What does the law say
• It is the legal duty of the central government to devise and execute national
strategies, actions, plans and programmes for conservation, but also to issue directives to
state governments to take immediate steps where biodiversity and habitats are threatened
by overuse, abuse or neglect. [Section 36]
• The BD Act intends to regulate only commercial utilisation, bio-survey or bio-utilisation as
defined in the law itself. Therefore, local people including what the Act calls
‘growers, cultivators and traditional healers’ do not have to give prior intimation to the State
Biodiversity Boards for obtaining any biological resource from forests for their everyday
activities. But, this provision under the BD Act for access by local peoples cannot override
any forest laws. [Section 7]
• Every local body is required to form a Biodiversity Management Committee (BMC ) whether
at the urban or rural level. [Section 41] The BMCs have been tasked by the law to make
People’s Biodiversity Registers (PBRs) among other things. These registers would be a
people’s record of the forest diversity and knowledge linked to it. As per the Act urban forest
management plans need to be as mindful of diversity as rural plans.
• It is mandatory for the NBA to impose such terms and conditions on the grant of approval
for access that ensure equitable benefit sharing from the use of accessed biological
materials or TK associated with them. This has to be mutually agreed upon in consultation
with the ‘benefit claimers’ (or the custodians/stewards of the assets/knowledge who are
sharing them), the concerned local body and the applicant seeking access. [Section 21]
8. Access to Forest Resources and Knowledge-gaps
• Collections plants, insects, animals in the name of studies
– In 2008, the conviction of two Czech entomologists by the Supreme Court of
India, for accessing beetles and butterflies from the forests of a National Park
in West Bengal
• Traditional Forest Related Knowledge
– Plant knowledge of the Onge tribes of the forests of Little Andaman Island,
which in the early 90s was discovered to have anti-malarial qualities
– a fungus Yarsagumba (called ‘Himalayan Viagra’), which is found in the forests
of Uttarakhand is famous both in India and Nepal, for its properties as an
immune booster and aphrodisiac
• Access to Forest Tree Germplasm
– a researcher from an agricultural university in Chhattisgarh found himself
embroiled in a ‘biopiracy’ controversy when he allegedly passed on saplings of
a rare variety of the oil-yielding jatropha plant to D1 Oils, a UK-based
multinational corporation engaged in agro-fuel trade
• Tree ‘improvement’ and forest genetics
• The genetic engineering of trees and the access
9. Benefit sharing-Gaps
• The industry and most user countries unequivocally state that benefit sharing
will happen only if their intellectual property (IP) is legally protected
• The patent law in India does not permit the patenting of traditional knowledge
per se. However
– it requires vigilance to make sure that IPR in the form of patents are not wrongly granted on
products that might be derivatives of TK.
– patent law does not prevent seeking of patents made from non-biological means such as
modern biotechnology
– NBA can ask a person applying for a patent or any other form of IP, to share ownership of IPR
with either the NBA or identifiable benefit claimers, as a pre-condition for benefit-sharing
• PPV &FR Act 2001 grants a specific IP called plant variety protection (PVP) to
breeders of trees and vines as well and it does not come under the purview of
the ABS system under the BD Act (BD Act does not apply to any person making
an application for IP under the PPV&FR law)
• Under the BD Act, those dealing with normally traded commodities (NTC s) are
not required to adhere to the approval requirements laid down for gaining
access to biological resources. The Environment Ministry has in consultation
with state governments notified 190 such commodities that fall under the NTC
list
10. Bhagat Mandli Case
• The Dangs forest in the southern district in Gujarat, an area where the
Sahyadri, Satpura and Aravali ranges meet. The traditional healers of the
area, commonly called bhagats, are the source of a significant body of
knowledge about the curative qualities of plants in the forest.
• The Gujarat government gathered all the healers of this forest area into a
Bhagat Mandli, and their knowledge was accessed and documented. This
was made the property of the state by placing it in the State Gazetteer.
• Now a private company – Abhumka Herbal Pvt. Ltd.— will develop drugs
based on these herbal cures (having been granted permission by the state
sans a proper ABS procedure)
• It is yet to be determined how the benefits will be shared with the bhagats
and their communities. Another issue that has not been factored in is that
there could be counter claims from tribal communities belonging to the
forest areas of Maharashtra and Madhya Pradesh, which border The
Dangs
11. Protection of people’s TK versus grant of access
for R&D and commercial use
• The Kani tribe in Kerala showed the way by sharing their TFRK, of
medicinal plants in the forests they reside in, to not only government
institutes like the state-run Tropical Botanic Garden and Research Institute
(TBGRI), but also to private companies like Arya Vaidya Pharmacy
(Coimbatore) Ltd.
• A Kerala Kani Samudaya Kshema Trust was established in the mid-1990s
by the Kanis with assistance from TBGRI.
• A sum of money, part of the license fee paid by the company (AVP) to
TBGRI, was transferred to its account to be used for the tribals in that area
• Several years on, the registered Society lies defunct and it is ironic that
the community whose knowledge was used to produce the Jeevani
drug, today struggles in the forest area for its own medical needs
12. Individual property Vs Collective Sovereignty
• India, forests have mostly been managed under common
property regimes of ancient origin and biological resources
were treated as ‘common heritage of (hu)mankind’ which led
to wide-scale ‘biopiracy’
• ABS, is fundamentally premised on commodifying, privatising
and trading biological resources and their related knowledge
• This is in contradiction to the practices of forest dwellers who
have traditionally not considered their habitats as property
• The Scheduled Tribes and other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 (FRA), too takes the
path of protecting individual legal title/s by so providing
within the legal framework and with the overall emphasis in
its implementation. But its reference to TK in the context of
forests has not been explored for the protection of TFRK.
13. Way forward
• How does one actually do the valuation of local living
resources and knowledges? And who does it?
• Are there just and fair ways to deal with shared heritages
and common resources?
• Does monetary compensation make good the loss of
forest/biodiversity/knowledge?
• Does the ABS framework result in ceding control over
resources/know-how to those outside the communities?
• Can decision-making be re-localised and ‘benefits’ defined
by the benefit-claimers themselves?
• Moreover, would that be adequate to counter the larger
issue of financialisation of the benefit-sharing principles
and biological material itself.
