Access and Benefit Sharing and the Nagoya Protocol

Nashina Shariff

Manager

Environmental Stewardship Branch

November 2014

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Objectives of presentation and discussion

• Provide background on: • Access and Benefit Sharing

• The Convention on Biological Diversity

• The Nagoya Protocol

• Introduce the federal discussion document on Access and Benefit Sharing

• Obtain your feedback on the proposed approach

Note: The following slides have been included to facilitate understanding of the Nagoya Protocol. This is not a legal analysis or interpretation of the Nagoya Protocol.

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Background: The Convention on Biological Diversity

• United Nations Convention on Biological Diversity came into force in 1992

• The Convention has three formal objectives

1. Conservation of biological diversity

2. Sustainable use of its components

3. Fair and equitable sharing of benefits arising out of utilization of genetic resources

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Background: The Nagoya Protocol

• The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization was adopted by the Conference of the Parties to the Convention on Biological Diversity in 2010

• Addresses the third objective of the Convention on Biological Diversity

• Over 50 Parties to the CBD have ratified the Protocol. It entered into force on October 12, 2014

• The first meeting of the Conference of the Parties serving as the Meeting of the Parties to the Protocol was held October 13-17, 2014

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Background: Status of the Nagoya Protocol in Canada• Canada is a Party to the Convention on Biological Diversity, but has

not yet made a decision on how it will respond to the Protocol

• The Government has discussed ABS concepts with Aboriginal groups, provinces and territories and other stakeholders since 2004

• Environment Canada engaged broadly in 2011 on whether Canada should formally support the Nagoya Protocol (referred to as signature)

• At that time, the Government decided that additional analysis and engagement regarding the potential implications of the Protocol for Canada was needed before deciding how to respond

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Development of Domestic Policy

• Environment Canada has outlined a potential federal approach to access and benefit sharing to serve as the basis for further discussion with Provinces and Territories, Aboriginal groups and key stakeholders

• It is not a comprehensive plan to implement the Nagoya Protocol, simply a tool to enable discussion

• Environment Canada is engaging with Provinces, Territories, Aboriginal communities, industry and research groups throughout the summer and fall of 2014

• We are interested in hearing your views

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Access and Benefit Sharing: Overview

• Genetic resources (GRs) are defined as any material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value.

• The utilization of genetic resources includes research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology

• This includes scientific research and commercial use

• Access and Benefit Sharing (ABS) is the fair and equitable sharing of the benefits arising from access to and utilization of genetic resources and associated traditional knowledge

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Access and Benefit Sharing: Overview

• Access and benefit sharing (ABS) creates a system where those who access and use genetic resources - the users - enter into an agreement or arrangement with those who provide the resources - the providers - that allows providers to control access (if desired) and to receive a share of the benefits derived from the use of the genetic resources (if desired)

• Providers grant permission to access the genetic resources they control, and can impose conditions on sharing the benefits from that access

• Users can be diverse, from research institutions to cosmetic industries, who seek genetic resources or associated traditional knowledge to further their work

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Access and Benefit Sharing: Benefits

• Non-monetary benefits may include technology transfer or sharing of research and development results

• Monetary benefits may include licensing fees or payment of royalties, and are often the result of research focused on commercialization

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Access and Benefit Sharing: Traditional Knowledge

• Use of traditional knowledge associated with genetic resources may help users expedite their research and development efforts or offer insight into conservation activities

• Access and benefit sharing allows for the benefits arising from the use of traditional knowledge associated with genetic resources to be shared with the holders of that knowledge

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Nagoya Protocol: Roles and Responsibilities

• Different entities may be made responsible for providing Prior Informed Consent depending on the type and location of the genetic resources being accessed

• These are referred to as Competent National Authorities. and could include federal departments and agencies, Provinces, Territories and Aboriginal communities

• Canada would need to establish a National Focal Point to:• Inform potential users of genetic resources and associated Traditional

Knowledge on ABS requirements across Canada, as well as provide information on Competent National Authorities.

• Liaise with the International Clearing House

• Canada would also need to take measures to provide that genetic resources that are acquired in other countries and being utilized in Canada are accessed according to the other country’s laws

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Nagoya Protocol: Countries’ Responsibilities

Under the Protocol, countries will,

•as appropriate, aim to ensure that indigenous and local communities provide prior informed consent or approve of and are involved in, decisions regarding access to genetic resources on land to which they have an established right to grant access

•aim to ensure that indigenous communities provide prior informed consent or approve of and are involved in, decisions regarding access to traditional knowledge associated with genetic resources which they hold

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Nagoya Protocol: Implications for Users

• In a jurisdiction that has measures regarding access to genetic resources in place, a user (researcher, company, etc.) wanting to access genetic resources for the purposes of performing research and development on the genetic or biochemical composition of the genetic resource would need to:

1. Gain permission to access the genetic resources

2. Enter into a contract for the use of the genetic resource, where the provider requires such an arrangement (i.e., negotiate Mutually Agreed Terms)

3. Abide by the conditions in the mutually agreed terms when using the genetic resource

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Nagoya Protocol: Scope

• Covers genetic resources located in situ and ex situ • In-situ means genetic resources located within ecosystems and natural

habitats

• Ex-situ means the conservation of components of biological diversity outside their natural habitats. (e.g. herbaria, seed collections, universities)

• Canada is of the view that the Protocol will not be applied retroactively

• Only genetic resources acquired from in situ sources after the Protocol is in force are covered

• The Protocol does not apply to non-Parties• In particular, does not cover American genetic resources because the

U.S. is not a Party to the Convention on Biological Diversity

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Discussion Document

• The discussion document focuses on federal genetic resources • Situated on federal lands and waters, or those within federal jurisdiction

• Issue Prior Informed Consent for access to, and establish mutually agreed terms for, the use of federal genetic resources

• To the extent possible, rely on existing licensing, permitting and other policies

• Mutually Agreed Terms will be limited to non-monetary benefits for now

• Canada may choose to not require Prior Informed Consent for some genetic resources under federal authority

• If Canada decides to implement a federal policy, it likely would take up to a few years before it would be fully in place

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Discussion Document: Federal Roles

• Relevant Federal departments and agencies will be Competent National Authorities for federal genetic resources

• Grant access to genetic resources for which they are responsible through issuing permit or evidence

• Advise on applicable procedures for Prior Informed Consent and Mutually Agreed Terms

• National Focal Point for Canada• Provide information to genetic resource users on Prior Informed

Consent and Mutually Agreed Terms policies across Canada

• Provide general model templates for Prior Informed Consent and Mutually Agreed Terms

• Environment Canada may take on this role

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Discussion Document: Aboriginal Communities

• Engaging with Aboriginal communities to determine:• The level of interest in developing ABS policy

• How to support Aboriginal communities in:• Providing access to genetic resources to which they have an established

right to grant access

• The development of policies related to Traditional Knowledge associated with genetic resources

• Help Aboriginal communities put in place ABS systems by:• Raising awareness and building capacity

• Developing model templates for mutually agreed terms

• Providing examples of ABS systems applied by other indigenous groups

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Discussion Document: Accessing Foreign Genetic Resources

For use by Canadians of genetic resources accessed in another country:

1.May use the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA) to control use of foreign wild genetic resources

• WAPPRIITA prohibits the import of illegally possessed, transported or distributed wild plants and animals

• Interpret “illegal” to include ABS laws in the country of origin

2.Promote voluntary best practices to address uses of • genetic resources that are not “wild”

• traditional knowledge associated with genetic resources

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Next Steps

• Consider the comments from Aboriginal groups, provinces and territories and stakeholders

• Provide advice on the further development of domestic ABS policy and next steps regarding a response to the Nagoya Protocol in the fall