UP’s BIODIVERSITY RESEARCHERS GRAPPLE WITH LEGAL FRAMEWORKS FOR ACCESS & BENEFIT-SHARING

CURRENT BIODIVERSITY CONCERNS
Elpidio V. Peria
21 July 2013

Biodiversity researchers from the various campuses all over the country of the University of the Philippines’ (UP) system converged in Diliman, Quezon City this week (18 & 19 July) to get themselves updated on current regulatory frameworks relevant to their work, and they ended up also discussing ways how they will need to work together to facilitate their work, while also complying with these various legal frameworks, in spite of some difficulties they have encountered when dealing with these rules.

These frameworks mainly deal with access and benefit-sharing, a term of art referring to the rules on how biodiversity researchers collect or access their materials from the field, whether they may be biological or genetic resources and sometimes with traditional knowledge associated with these resources and the always forgotten or overlooked issue of benefit-sharing, or the determination of what kinds of benefits they may get from their collaboration partners, usually foreign, in these types of researches.

Benefit-sharing, one of the key objectives of the United Nations Convention on Biological Diversity in addition to conservation and sustainable use, is mainly the task of how to achieve the fair and equitable sharing of benefits arising from the utilization of genetic resources and the associated traditional knowledge therein.

The activity, organized by the University of the Philippines’ Center for Integrative and Development Studies (CIDS) based in UP Diliman and headed by Dr. Marilou G. Nicolas, was dubbed as the Workshop on the Wildlife Resources Conservation and Protection Act of 2001 (Republic Act 9147) and the Nagoya Protocol, to inform researchers of the current regulatory procedures of government agencies relating to the conduct of biodiversity research, while informing them of what will eventually be set up in relation to the tracking of their researches when it crosses Philippine borders through the Nagoya Protocol, to ensure that benefits are claimed and secured from past and future biodiversity researches that moved on to bioprospecting, an activity similar to mining prospecting, the search for useful biological materials from the field with the aim of looking for those materials or natural products which may have potentially useful commercial applications.

On the first day, presentations were given by representatives of the Protected Areas and Wildlife Bureau (PAWB) on the Wildlife Act or Republic Act 9147, the National Commission on Indigenous Peoples (NCIP) on the Indigenous Peoples Rights Act and their recently-issued guidelines on the research and documentation of indigenous knowledge systems and practices (IKSPs) including customary law, and the Bureau of Fisheries and Aquatic Resources (BFAR) on their own guidelines on access and benefit-sharing from researches made on aquatic resources, which include resources from both marine and inland water ecosystems.

During the open forum and workshop that followed, questions raised were : how certain types of genetic resources, for example, micro-organisms, are to be regulated, (these resources are covered by the Wildlife Act, through its implementing rules and regulations) though it was realized after discussion that some of these acts of collection, some of which are done by buying these resources from the open market or talipapa, or the local wet market, mainly fall outside of the regulatory reach of the agencies and the suggestion mainly was that once checkpoints at the point of publication or patenting or product marketing approvals are made, it is only then that the agencies can come in and determine whether these researches complied with the rules and take off from there the matter of benefit-sharing.

Another query was asked about cave organisms, whether the permit is to be secured from the DENR or the BFAR, and it was mentioned that there is a special law for that, on caves management and protection, though one participant quipped, who could be the one who asked the question, that they were actually researching on certain types of fishes (or was it marine organisms, this has to be checked again with the documentation of the meeting) found inside caves.

Questions were also asked from the NCIP representative whether they can help provide financial assistance to researchers to comply with the requirements for securing the free and prior informed consent (FPIC) of indigenous peoples and the response was that the agency does not provide for these types of assistance.

Another concern involved the matter of securing the prior informed consent of the protected area management boards (PAMBs), the entities established by the National Integrated Protected Areas System (NIPAS) Act, or Republic Act 7586, to manage the protected areas straddling key biodiversity areas or corridors of the country, which usually meet only quarterly, and more often than not, this schedule of meetings of the various PAMBs usually does not coincide with the schedules of the researchers, who have limited budgets to go into the far-flung areas of the country, thus delaying their researches some more. Also included here are the local government units (LGUs), who usually do not have a clue about the existing rules, though more often than not, the people here are helpful, but it also takes up a lot of time and effort for them to understand what they are being asked permits for.

Another difficulty involved some agencies who ask for baseline data on some species, but the problem pointed out is that for some species, for example, spiders, though it was said that some agencies give leeway to the researchers to identify the number of species they want to collect.

There was also the matter of fees, and a researcher reported that the Palawan Council on Sustainable Development charges Php50/specimen, it seemed the researcher is having a problem on the fee asked since what they may need for their research may include a large number so they do not have enough budget for such fees.

On the second day, presentations were made on the access and benefit-sharing framework of the Nagoya Protocol, particularly its key features on the measures that will track or monitor the utilization of genetic resources as it moves from research and development phase to innovation, pre-commercialization and commercialization, including the obligation to include in the access and benefit-sharing of traditional knowledge associated with genetic resources the consideration of the relevant customary laws and community protocols of indigenous and local communities when making decisions on these matters. Also mentioned was the Pandemic Influenza Preparedness (PIP) Framework, an international instrument for the access and benefit-sharing of pathogenic influenza viruses approved by the World Health Assembly sometime in May 2011 in Geneva, Switzerland and it appears that, pending further validation of information, the Philippines may have some good basis to claim for benefits under this instrument on the basis of some work of the researchers who attended the workshop.

The other presenters were from the Philippine Council for Health Research and Development, and their new rules before they will provide grant-in-aid to researchers requiring that the necessary permits, especially from indigenous and local communities, in cases of researches involving the traditional knowledge of these communities, must be secured first before their application may be processed. The researchers asked for a reconsideration of this rule, since usually getting these permits take up a lot of time and when this is required at the first instance, either they will get stuck in the stage of securing these permits and they will never be able to commence their research at all. Worse, they will then have to advance their own funds for the expenses needed to secure these permits, and what if they cannot get these permits, then they will never be able to apply for funding, and they will never be reimbursed for their own personal funds spent for this purpose!

The Technology Transfer Act was also taken up, and what was highlighted was the obligation of researchers working on biological or genetic resources, traditional knowledge or indigenous knowledge systems to disclose their use of these resources in their work, which in a way corresponds to the checkpoints called for by the Nagoya Protocol.

From the discussions, what needs to be figured out now is whether the benefit-sharing obligations under the 2005 Guidelines issued jointly by the implementing agencies of the Wildlife Act would need to contend with the sharing scheme under the Technology Transfer Act between the researcher, the government funding agency and the research and development institution. From the way things are, either the scheme under the Wildlife Act may either be considered as something that’s in addition to what is provided for by the Technology Transfer Act or the two schemes may either need to be integrated to fully take into account what is provided for by the basic legislation on these items.

Finally, there was also a presentation from the Technology Transfer Office of the UP System on biodiversity and intellectual property rights (IPRs) on the overview of what sorts of subject matter relating to biodiversity and traditional knowledge are patentable or subject to other forms of IPR but what’s interesting was the mention of sui generis (meaning, “of its own kind”) forms of protection of the traditional knowledge of indigenous and local communities, which is what is provided for actually by the Indigenous Peoples’ Rights Act. If combined with the notion of community protocols and customary laws that is mandated by the Nagoya Protocol to be considered when tackling access and benefit-sharing matters relating to the traditional knowledge associated with the genetic resources of indigenous and local communities, then this may be something that will help the researchers contend with the perceived “over-bureaucractized” procedures for securing free and prior informed consent (FPIC) under the NCIP, which is seen to somehow disregard or de-emphasize the role of indigenous peoples in the entire process, with the NCIP taking an overly dominant role in the entire process of granting FPIC.
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Taking off from these concerns is the need to also take into account the concerns of local communities, those communities who cannot be classified under the definition of indigenous peoples under the Indigenous Peoples Rights Act, who may also have some traditional knowledge to contribute to help Filipinos cope with their contemporary problems not limited to health.

There were other matters of significance tackled by the participants that space limitations of this blog will not be able to fully reflect, but it’s good that the effort of UP would continue and eventually become the norm of all other academic institutions in the Philippines working in biodiversity.

oOo

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One Response to UP’s BIODIVERSITY RESEARCHERS GRAPPLE WITH LEGAL FRAMEWORKS FOR ACCESS & BENEFIT-SHARING

  1. Congrats and thanks to UP for hosting this one! I just hope other academic institutions in the Philippines continue to work actively on the field of biodiversity and will provide venues to various biodiversity fora. By doing so, issues just like those tackled and discussed above may find solutions and/or recommendations. Stakeholders, particularly government agencies concerned, could also be tempted to put forward their resources in achieving conformity to the objectives of the United Nation Convention on Biological Diversity.

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