Where is my profit share? The Nagoya Protocol and how companies must compensate indigenous traditional knowledge

Federico Piano

Guyer & Regules, Montevideo

fpiano@guyer.com.uy

Monday 31 October 2022

Session Co-Chairs

Alessandra Nascimento S F Mourão Nascimento e Mourão Advogados, São Paulo

Speakers

Thiago Falda Brazilian Association for Bio Innovation, São Paulo

Martin Michaus Basham Ringe y Correa, Mexico City

Anne O'Donoghue Immigration Solutions Lawyers, Sydney

In April 2022, the world gathered at the 15th Conference of Parties to the Convention on Biological Diversity and the fourth meeting of parties to the Nagoya Protocol, which are major international treaties aimed at protecting biodiversity and associated traditional knowledge.

The international community assessed the effectiveness of these instruments to achieve the outlined objectives, including ensuring the fair and equitable sharing of the benefits obtained by accessing and using the traditional knowledge of indigenous and local communities to carry out research and development of products and services.

The panel discussed current issues on the protection and enhancement of associated traditional knowledge from three different perspectives: (1) the effectiveness of the Nagoya Protocol and the Convention on Biological Diversity in promoting the sharing of benefits obtained from the use of traditional knowledge: reality or fiction? (2) the protection of traditional knowledge and benefit-sharing from the perspective of megabiodiverse countries: experiences and perspectives; and (3) traditional knowledge associated in the digital world: is it possible to guarantee prior consent and benefit sharing in a world where everything is just a click away?

The effectiveness of the Nagoya Protocol and the Convention on Biological Diversity in promoting the sharing of benefits obtained from the use of traditional knowledge: reality or fiction?

Martin Michaus began explaining the concept of 'traditional knowledge' (TK), which is the intersection between environmental law, human rights, indigenous rights and intellectual property rights. TK is understood as know-how, skills and innovation practices that are passed from generation to generation in a traditional context and are part of the traditional lifestyle of the communities' local indigenous people. As an example of traditional cultural expressions, the speaker mentioned the case of the 'Washington Commanders'. In July 2020, the team announced that it was going to delete the name and Redskins logo as a result of the criticism it received from Native American groups who said it was an ethnic slur and a derogatory reference to skin colour.

Michaus made special reference to the Convention on Biological Diversity, which was held in Rio in 1992 (196 members), and aimed at the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of benefits arising from the utilisation of genetic resources. Before the convention, genetic resources were considered as open access resources and the heritage of humanity. The convention recognised the sovereign rights of countries over their genetic resources and right to benefit sharing. The speaker also mentioned the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation, which was signed in 2012 by 138 countries. Its three main objectives are: prior and informed consent (PIC), fair and equitable sharing of benefits (FESB) and mutually agreed terms (MAT).

To answer his question on whether the sharing of benefits obtained from the use of traditional knowledge is reality or fiction, the speaker made reference to the case study of Costa Rica-Blue Serum & Chanel. In 2014, Chanel Parfums Beaute initiated investigations on Green Coffee from the Nicoya Peninsula, with the objective to integrate it into a cosmetic formulation. Chanel and Nicoya Peninsula coffee producers agreed a fair and equitable distribution of benefits generated from the biodiversity resource.

Despite this case study, the speaker stated how, in reality, the benefit distribution is extremely low: in Australia from zero to five per cent of gross income; in Brazil, one per cent of the gross income of the final product; in Costa Rica, up to ten per cent of the research budget; and in India, one to five per cent of the price of the raw material and 0.1 to 0.5 per cent of the factory product price.

Above all, the panel concluded that there is a need to face current problems, which include the economic value and use of illegally and illegitimately appropriated traditional knowledge (biopiracy); the tangible value of the sample disappears very quickly and is transferred to information about molecules or processes; a difficult exact delimitation of what is going to be regulated (biological resource, genetic resource or 'derivatives'); difficulty in tracing movements of genetic resources (need for a certificate of legal provenance); and the lack of regulation can result in the loss of investment and development opportunities.

The protection of traditional knowledge and benefit-sharing from the perspective of megabiodiverse countries: experiences and perspectives

In order to explain the importance of traditional knowledge and benefit-sharing, Anne O'Donoghue used Australia as an example.

The speaker explained how Australia is not currently party to the Nagoya Protocol; nevertheless, there are existing domestic measures that are consistent with the protocol such as the Biological Resources Act 2006 (Northern Territory), the Biodiversity Act 2004 (Queensland), and the Environment Protection and Biodiversity Conservation Act 1999, which is Australia's main environmental legislation.

Moreover, O'Donoghue, emphasised the special importance of Australia's national biodiversity strategy and action plan for the period of 2019–2030, where the main goal is to connect all Australians with nature. To achieve this goal, the speaker mentioned two main objectives: (1) to empower Australians to be active stewards of nature; and (2) respect and maintain traditional ecological knowledge.

The first objective looks forward to the acquisition of progress measures that include Aboriginal and Torres Strait Islander people, women, youth and organisations taking care of nature. Individuals may volunteer for nature-based activities, contribute to citizen science programmes or enter land covenant or stewardship agreements. The capacity of community groups to participate in stewardship programmes can be increased. Additionally, the second objective suggests that ecological knowledge can be a valuable tool for assessing changes to the environment and identifying appropriate management strategies. The traditional stewardship of land and sea can be supported through programmes to increase participation under the guidance of Aboriginal and Torres Strait Islander people.

An interesting case presented by the speaker was the Fortescue Metals Group Case Study, in which the Billion Opportunities programme awarded contracts and subcontracts worth more than $4bn to over 140 Aboriginal businesses, which ensured economic opportunity and growth for the traditional custodians of the regions.

The panellists agreed that although Australia is making an effort to apply the action plan and to join the Benefit Sharing Agreement, the current approach is insufficient; hence, it is of paramount importance for Australia to become a party to the Nagoya Protocol given the country's abundance of biodiverse land, flora and fauna.

Traditional knowledge associated in the digital world: is it possible to guarantee prior consent and benefit sharing in a world where everything is just a click away?

Thiago Falda who is part of the Brazilian Association for Bio Innovation (ABBI) at São Paulo, Brazil, mentioned how rapid advances in molecular biology, computing and bioinformatics are allowing people to understand the functioning of organisms like never before. Falda explained that the fundamental tool for this revolution was the creation of genetic databases (public and private). Today, the operative principle most prominently involved in transmitting sequencing is open access.

The speaker concluded by emphasising today's challenges: (1) information from genetic resources should be protected because once extracted, it could be freely distributed and harm the provider; (2) databases must adapt their rules, requiring information about the origin of digital sequence information; (3) a multilateral mechanism must be created in cases in which it is not possible to trace the source of genetic resources; (4) benefit sharing must occur only in cases in which biodiversity adds value to the product (Law No 13.123); and (5) automatic prior informed consent operated by the state and with facilitated access is necessary.