The negotiations for a legally binding international regime for ABS are hot issues and are under negotiations under the CBD Working Groups on Article 8 j and on Access and Benefit sharing. The other intergovernmental processes where these issues are under intense negotiations are the WIPO committee on Genetic resources, TK, folklore, the TRIPs agreement under the WTO the complimentary ITPGRFA, UPOV, The WSSD under the sustainable development provisions ABS is considered as a tool for poverty alleviation and environmental sustainability through monetary and non-monetary benefits that can be gained in exchange for access to potentially valuable resources.
The global negotiations for drafting a legally binding law on Access and Benefit Sharing continue even a decade after the entry into force of the convention. A critical view on these negotiations gives a clear impression that the developed North with the financial interests of the multinationals favors a status quo. While the developing countries with a degree of variation in their respective national interests and level of awareness do push for having a law in place that safeguards the interests of the nation states as well as the indigenous communities residing therein.
While it is easier to define the indigenous groups, TK is a bit difficult to define and document. Traditional knowledge (TK) generally refers to the traditions and practices of local communities it also encompasses their wisdom, knowledge, and teachings. Traditional knowledge has been orally passed for generations. Some forms of traditional knowledge are expressed through stories, folklore and rituals and folklore and even music and laws. Other forms of traditional knowledge are often expressed through different means. Indigenous and local communities often do not have the tradition of ownership over knowledge that resembles the modern forms under the realm of intellectual property rights.
At the international level attention has been diverted and has turned to intellectual property laws in order to preserve, protect, and promote traditional knowledge under the aim of equitable benefit sharing. The Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species and ecosystems. It soon became apparent that implementing these provisions would require that international intellectual property agreements would need to be revised to accommodate them.
The gist of the deliberations on traditional knowledge at the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD) is that the development of any policies, laws or regulations on traditional knowledge must involve the full and effective participation of indigenous and local communities. Another point is that the access to traditional knowledge and genetic resources can only be obtained through the prior informed consent (PIC) of indigenous and local communities. And that the indigenous and local communities have the right to determine the parameters of benefit sharing, and use by others; it could proceed on the basis of mutually agreeable terms between the holders of knowledge and resources and those who seek commercial benefits out of traditional knowledge.
An important component of the CBD is that of the equitable benefit sharing of biological resources. Part C of Article 10 requires each Contracting Party to protect and encourage the customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;
This aspect of the CBD has not yet been fully addressed in Pakistan. However, The Biodiversity Action Plan (BAP) has touched on this issue by stating that NGOs should be involved in the conservation of protected areas involved in the process. Unfortunately, the equitable benefit sharing of biological resources has not been dealt with directly. References in existing laws on land, forestry, fisheries and wildlife do give an idea of the understanding of the state on the equitable benefit sharing of biological resources. In Pakistan some work has been done in the Ministry of Environment by the establishment of a Biodiversity Working Group 2006. However many countries have clear definitions of indigenous groups and their traditional knowledge, there is a need to consider on nationally agreed definitions in Pakistan
The Sustainable development Policy institute SDPI has implemented a project entitled “Farmer’s Rights to Access and Benefit-Sharing from Plant Genetic Resources’ This is a South Asia regional initiative carried out through the South Asia Watch on Trade Economics and Environment (SAWTEE) network of which SDPI is a member. This is a six-year program, (comprising of two phases of three years each) funded by the Ford Foundation, NOVIB and Action Aid Asia. Various studies conducted in this program primarily focus on raising the level of debate on issues related to the protection and promotion of farmers’ rights in the WTO era at the level of civil society, public sector, and policy makers and conducting research on vital issues. These studies analyze the possible opportunities for, and threats within the multilateral trading system to farmers of the Hindukush-Himalaya (HKH) region. During the first phase, SDPI produced 12 briefing papers, two research reports and an online database of medicinal plants found in Pakistan.
Some initiatives, however, have been taken to promote income sharing from biological resources and provide income to the local communities. This is in the shape of an ecotourism project by the Adventure Foundation of Pakistan for the blind dolphins (See Box 13 for details). NGOs like SUNGI38 have been advocating that the revenues earned by the state from forest harvesting in the high hills should be shared with the local population.
The Draft Biodiversity Act 2006 on Access and Benefit Sharing
Pakistan prepared its National Biodiversity Action Plan (BAP) during 2000. Pakistan also prepared and sent its three National Reports to the CBD Secretariat. Section 4.11 of BAP on ABS briefly touches Article 15 and 19 of the Convention; however the quintessential Article 8 j has not been touched. This could be attributed to lack of capacity, awareness and technical know how on the issue at the time of preparation of Biodiversity Action Plan.
Another important activity that directly relates to ABS is the formation of the Biodiversity Working Group (BWG) in the Ministry of Environment that had been successful in preparing the first draft ABS Law for Pakistan. Composition of the BWG comprising of 34 members shows that efforts have been made to include all relevant stakeholders. The Draft Pakistan Biodiversity Law 2005 was prepared by a sub-committee comprising of experts. However, with the establishment of a full time Directorate of Biodiversity within the Ministry of Environment’ its capacities increased tremendously. The draft law was circulated to all stakeholders and many inadequacies were identified. These are summarized in the following lines:
The Bonn Guidelines have been altogether been ignored, ii) While there are adequate provisions on procedures for access to genetic resources there is no provision on the safeguard of traditional Knowledge related with biological conservation (TK), iii) sharing of benefits with the holders of TK, iv) There is no clarity on who the indigenous communities are and how the benefits would be shared, v) There is no reference to the Patent laws of Pakistan, vi) Definitions of the basic terms are altogether missing, vii) There is no provision on who will be responsible for the implementation of what, viii) No penalties for violators of the provisions of the Act are provided.
Box 14: The Cycle of Despair39
“Why you are coming after every two months,” remarked the woman from the boat. Though visitors are warmly welcomed in rural Sindh, the fishermen community of Manchar Lake has become sick of visitors. As we met the woman named Lal Khatoon in the boat, she said that the golden days of Manchar have passed when a thousand tons of fish were caught. Now the colour and taste of fish has changed. "The former Chief Minister Abdullah Shah had introduced the new seed of fish in the lake but that also does not give any fruitful result,” says Lal Khatoon. According to her, almost each house of the area is in debt. They also purchase grocery items on credit at high rates. The shops are also located in boats. Women have very little for entertainment. They meet in the evening on the boats and chit-chat, and sometimes they sing folk songs. Men arrange chicken fights for entertainment. In marriages, boats are decorated. A huge amount of money is taken as a loan from the contractor and is spent on marriages. Having huge feasts in marriages is a matter of prestige. Once an indebted person comes in the control of the contractor he never gets rid of the debt and remains in the vicious circle of poverty and the credit remains for generations.
"We also go to our spiritual leader Pir Mattal Shah who lives in the lake," says Lal Khatoon. Lal Khatoon prays to Allah that Chandan Main Nara Valley Drain (MNVD) i.e. outfall of the Right Bank Outfall Project (RBOD), which has spoiled the lake, should be stopped immediately.
The Right Bank Outfall Drain Project (RBOD) is a long-term project. It aims to drain out saline water on the Right Bank of the Indus River. Under the Right Bank Master Plan, developed by M/s. Mott Macdonald, WAPDA has undertaken drainage works on a priority basis that includes the construction of the link canal. This canal would dispose off the effluent from the RBOD into the River Indus. Presently; this effluent is disposed of in Manchar Lake through the MNV drain. The Main Nara Valley Drain has been further widened and remodelled to drain saline water. The RBOD has direct outfall in Manchar, which has not only affected life around and in the lake, but has also disturbed the heritage of Sindh. Under the project, the drain is being constructed to eliminate the outfall in the Indus River, which would again play havoc with the downstream population. This is because there is serious and unprecedented water scarcity in the Indus River due to upstream dams. More than 40,000 people from the vicinity of Manchar Lake have migrated due to loss of their livelihood. This perhaps is the worst migration due to environmental degradation in Pakistan.
Amongst the NGOs only SDPI and Inter-cooperation (IC) have the exposure to deal with the complex issues of Bonn Guidelines. In view of above it is evident that Pakistan has a long way to reach the threshold required to deal with the subject in a holistic manner.
Box 15: Conserving the Indus River Dolphins through Boat Safaris40
The blind Indus dolphin is an internationally threatened mammal. Almost impenetrable barrages have carved up its home range. It has virtually no room to move along the great span of the river. This river was once its home territory. The waters of the Indus are polluted by human activity as it runs its tremendous course to the ocean. The dolphin has to compete with man for the fish that forms an essential part of its diet. Occasionally the river dolphin is trapped in fishing nets, which can mean death for the mammal. As is the case in many developing countries, there are limited financial resources to conserve this rare animal.
The Indus River dolphin is a very unusual kind of cetacean. A century of living in the turbid waters of the Indus has meant that its eyes are no longer needed. It has developed a sophisticated sonar system known as echolocation that it uses to steer with and hunt underwater. The current population of the river dolphin is thought to be 500. Its habitat is now confined to the area between two barrages, the Guddu and Taunsa Barrages, on the Indus.41 A relative of the Indus River dolphin, the Ganges dolphin closely resembles it, but is, in fact, a distinct species. Other river dolphins include the Amazon River dolphin and the Yangtze River dolphin, all of which are distinct species. The closest known interaction of the river dolphin with humans is with the Indus Boat people, the Mohannas, who have lived on this river for centuries. The Mohannas too know no home other than the Indus, for they are truly boat people. Their houseboats drift silently up and down the river all year long using only sails and oars to propel them. The boat people are fishermen, who rely on the fishing contract issued by the government to harvest farmed fish on the reservoirs of the Indus barrages and dams. Poverty and neglect imperil the Mohanna's non-invasive way of life, and they suffer from poor health, education and low-income status.
The river dolphin has been featured in the folklore of the boat people, mostly as a benign and harmless creature. Now these two gentle life forms are thrown together into an awkward coexistence as they compete for food and space on the river.
Caught in this impasse of neutrality, the fishermen do not proactively conserve the dolphin, although they are keenly tuned into the behaviour and whereabouts of the dolphin in the river. The Adventure Foundation of Pakistan (AFP), a non-commercial venture, has initiated the Indus Boat Safari to raise awareness about this ecosystem and its unique inhabitants. The boat safari offers outsiders the chance to live on traditional Mohanna boats, drifting down the Indus with the fishermen to see the dolphin at close quarters and understand this unique animal. The project is aimed at developing an ecotourism product that protects the threatened Indus dolphin by involving the Mohannas to become the protectors of the dolphin. Conservationists in Pakistan are aware of some of the commercialised dolphin viewing tours operating in the world that have resulted in dubious impacts on both human and dolphin interactions. There have been cases when invasive tourist practices like feeding and swimming with the dolphins has been hazardous to both the animal and man. The AFP promotes dolphin viewing as a non-invasive activity, based on the traditional practices of the Mohannas. The closest that the visitors may get to the Indus dolphin is to listen to the continuous vocalisation of the dolphin with a hydrophone placed in the water.
A small co-operative society of the boat people manages and benefits from the proceeds of the ecotourism activity. The AFP is providing technical guidance to the boat people, helping to upgrade their boats, improve safety for visitors and equip individuals to become certified Indus guides. The AFP also helps promote this new activity in the country and in the world by using its close alliances with conservation NGOs such as the WWF, IUCN and the government. As it establishes itself, the boat safari is an incentive and a reward for the boat people to conserve the unique dolphin with minimum disturbance. It also encourages them to value their own traditional way of life and helps promote the off season activities of the Mohannas by refining and marketing their traditional handicrafts, such as basketry and embroidery. In the national context, the government has declared the territory of the Indus River dolphin a protected area. The habitat of the river dolphin is classified as the second most critically threatened ecosystem of Pakistan. The Boat Safari represents an essential link in the chain to help save the dolphin. As the primary interaction between the animal and the human, the project is a grassroots initiative to enable the boat people to become the protectors of the blind Indus River dolphin.
Another initiative is the three-year project (2003-2006) titled “Documentation of Indigenous Knowledge about Medicinal Plants of Pakistan”. This project is financed by Pakistan Science Foundation and executed by Pakistan Museum of Natural History Islamabad. This project is meant to undertake field studies to determine the status, trends and threats related to the knowledge, innovations and practices of medicinal plant use by indigenous and local communities
Keeping in view the comments received, the Ministry of Environment has notified the BWG keeping in view the current trends. However the complicated issue of who would represent the local and indigenous communities to safeguard their interests has yet to be resolved. The issues related to WIPO, WTO and ILO convention 107 that are directly related to Bonn Guidelines are yet to be resolved. The Ministry of Labor and Manpower is the focal point for ILO 107 Convention while the Ministry of commerce deals with WTO and WIPO issues, the Ministry of Food Agriculture and Livestock deals with Farm Breeders’ rights, ITPGRFA and UNPOV: issues directly related to the issue of ABS/ Bonn Guidelines. The newly established Pakistan Intellectual property Organization (IPO) has also been contacted by the Ministry of Environment in this regard.
The CBD through its provisions on access and benefit sharing have the potential for poverty alleviation, one project on the Indus Blind dolphins can be considered as a step in this direction (see box 13); however continuous and dedicated efforts are needed to achieve the objectives of the CBD.