Monday, 28th September 2009
Agenda
09.00
Opening and Welcome:
Dr. Kassaoun, Deputy Director General, Institute for Biodiversity Conservation, Ethiopia.
Dr. Kassaoun introduced the Institute as the largest such institute in Africa, and described how it operates based on the three objectives of the CBD, also mentioning that Ethiopia is a pioneer country in Africa, as it has 2 ABS agreements, teff and veronia.
Dr. Andreas Drews, GTZ (ABS Capacity Development Initiative for Africa then introduced the Initiative.
He described a push in 2010 towards the International Regime on ABS; Africa has through the Initiative been preparing itself for this, and also a push for implementation of the Regime through national ABS laws post 2010. He expressed confidence that the Initiative will continue providing this kind of support and that the funders of the Initiative are keen on continuing to support their activities.
Pictures: Below left: Dr. Kassaoun, on right, and below, right: Esther Mwaura-Muiru, Left, and Kathryn Heidbrink, right
Kathrin Heidbrink and Esther Mwaura-Muiru introduced the team of facilitators, who then explained the agenda for the workshop, and introduced the participants.
Overview of key issues relating to ABS:
Dr. Drews introduced the ABS Management Tool.
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QUESTIONS & ANSWERS:
1) What is the link between tools developed by IGC and ABS- isn’t there a need to integrate these processes?
Link to WIPO process is important, but that process is stagnant so we have to be careful of linking it. Secondly ABS goes beyond TK which is the focus of the IGC. So the focus of the ABS MT is about national implementation
2) When you address the issue of PIC, what about information in the public domain in terms of the management tool?
No clear answers about this. The AHTEG report from Hyderabad provided some inputs regarding this which will be discussed tomorrow
3) Could you explain a little more on model clauses?
The ABSMT provides model clauses that can be used for ABS agreements
4) What are the links between WTO processes and the CBD?
There is a linkage but weak. The CBD seeks to point out that the WTO is not compliant with the CBD. There is a process on in WTO that is looking at TRIPS and to see whether it can be made CBD compliant. There is also a process in WIPO to try and see how they can be harmonized, but no real efforts.
5) Distinction between GR and BR in the ABSMT?
There is a lack of clarity on this- this also brings into question of derivatives and products. The CBD itself talks about utilization of GR- so this seems to be a direction in which it is proceeding, to make a distinction between GR and BR. There is also a difficulty in dealing with the distinction between commercial and non-commercial research.
10.30
Coffee
11.00
Introduction to Enzyme case from Kenya, Mr.Mukonyi, Kenya Wildlife Service
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Microsoft_PowerPoint_-_From_Genes_to_Jeans_and_Detergents.pdf |
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Analyzing the Enzyme case using the Management Tool
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EXERCISES FOR THE USE OF THE ABS MT TOOL: DIVIDED INTO 2 GROUPS WITH GROUP 1 WORKING ON EXERCISE 1 AND GROUP 2 ON EXERCISE 2
GROUP 1 A
Existence and enforcement of well-defined national laws in association with local community regulations in respect of access to an area of interest (+exit with the material) and emphasis on all possible positive outcomes (benefits) that may eventually emerge from the specific research work
Rights of LC should be fully respected all way through
- BCPs
- Participate in all-decision making levels
- All possible outcomes made known to them
- All parties involved i.e. local university + foreign university+ industry+ industry+ multinationals
- Benefit from continued use
Of TK and GR
1988 (Clear and well defined PIC)
PIC (student/uk university= Local community+ competent authority)
1991 PIC (student, UK University, Dutch company= local community +national competent authority)
1993 PIC (Commercial company= local community+ national competent authority)
1996 PIC (US company= local community+ national competent authority)
GROUP 1B
Laws applying at local level- no regulations
National level- Permit deficient on research rules and regulations beyond the national borders
International_ CBD no enforcement
- Should have been in place- regulatory mechanism has to be binding- MTA, IP rights
- International , mandatory disclosure of origin
Rights of local community- not the national laws, resources used by the government
PIC standards- clear responsibility on those issuing permits
Clear guidelines for those to use the permits
Clear rules for transfer to third parties
GROUP 1C
Applicable international/national laws
-CBD/Bonn guidelines
-National environment management act + ABS regulations
Measures that should have been in place for PIC
-PIC obtained from competent national authority
-MATs and MTAs arrangements
-PIC from local community
Rights of Local Communities
Depends on international obligations, national legislations and local/community custom
Rights:
- use of resources/materials
- conservation support
- PIC
- Information in appropriate medium
- Consultation
- Share in benefits associated with use of resources including from commercial exploitation of the resources
- Rights associated with TK, if applicable
- Reflection of community interests in MTA
- Disclosure of origin of material in patent applications
3. Use of PIC in access requirements
-PIC in national laws and regulations
-Establishment of competent national authority
-Effective information sharing
-Enhanced consultation
-Dispute resolution mechanisms in accordance with he international regime
Who should seek PIC
-University, patenting company, permission by student
GROUP 2 A
1) Purpose: research
2) Elements of agreement
-PIC
- MAT
-Benefit Sharing beyond original PIC (short, medium and long)
-Stakeholder valuation of resources
-Strengthen capacity for conservation and sustainable use
-Technology transfer
3) Fairness, equity, ensuring interest of all parties (gov, communities etc.), tryst, penalty and liability (responsibility)
GROUP 2B
-Research (but is research commercial?)
-Written agreement
-Proper terms and conditions
-Clearly define actors and roles (users and providers)
-Mention in clear terms the genetic resource and associated TK
-Types of benefit sharing (monetary and non-monetary)
-Negotiable and non-negotiable e.g. royalties and conservation fee
Sharing process
management of benefits
Compliance and enforcement e.g. competent institutions, punitive measures etc.
Applicable laws
Multistakeholder participation:
- harmonized strategy for benefit sharing- locally, regionally and internationally e.g. set up an institution and manage ITPGRFA
- build transparency and trust among stakeholders
GROUP 2 C
1) Initial purpose:
- Academic research for the Kenyan student
- For the others, the results of the basic research are translated into commercial strength
2) All the core standards needed = PIC, MAT and BS
3) Must be written and signed in good faith between all stakeholders. New agreement/contract for any new purpose
MAT= takes into account the differences in capacities and needs
REVIEW OF ABS MANAGEMENT TOOL:
Positives:
1) Well written, comprehensive, overview
2) Relevant items, practical tool
3) Case studies are helpful
4) Having a tool at all is very helpful
5) Comprehensive and simple and understandable
6) Flow chart on p.8 and 9 is a good attempt to give clear overview- initially also contains BR (top point on page) BUT
Negatives:
1) Summary after each point would be good
2) Question: Should it be restricted to GR, should cover broader CBD cover, including BR might be helpful
3) MAT: No reference to retrospective issues (vol 2, p.22), when biopiracy has already occurred
4) Duration of benefit sharing and modification of resources not covered (?)
5) V1: Definition of GR not complete (what do they include, e.g. derivatives, by products etc.)
6) M and E of ABS agreements missing
7) Not fully clear who should use the MT, and what level of knowledge they need
8) Include definitions of all acronyms and terms used in the book
9) Pictorial expressions/summaries for Africa would be helpful
10) Flow chart on p.8 and 9 does not follow up on BR after first point
11) Owner/custodian/competent authority may be hard and sometimes impossible to identify (re: flow chart p.8-11) Orange column needs to be revised
12.30
Lunch
14.30
Sharing group work results
International ABS regime negotiations: Presentation of African position & discussion, Pierre du Plessis, Namibia
- Overview of negotiation process and African position
January 2006 Grenada- A text that was impossible to negotiate came up
COP 8- Brazil Curitiba
Montreal- November 2007, tried to work on Grenada text
Geneva- January 2008- threw out Grenada text and came up with bricks and bullets
COP 9 in Bonn- spent time discussing the way forward- 3 WG meetings
WG ABS- Paris negotiated Objective, Scope, Access and Benefit Sharing
WG ABS- Montreal will negotiate Nature, Capacity Building, TK, also go back to Access and Benefit Sharing
WG ABS- Columbia will Finalize regime
General African position:
Objective: very difficult negotiations- mini protocol outcome, littered with brackets, the group almost tried to make it a summary of the IRABS. We need one or two paragraphs at best to move ahead
Scope: The African position- IRABS has to deal with GR and BR, derivatives and products. On the other hand there are parties that are trying to exclude stuff from the IRABS. Pathogens was one of the issues that came up in Paris. If this trend continues then there is a danger that we end up with a regime that covers only GR that is used only for purposes of certain kinds of propagation.
The expert group on concepts and terms in Windhoek in Dec 2008, tried to hone down on ‘utilization of GR’ as an outcome.
Personal view is to have a regime that works as an umbrella that sets minimum standards for a number of other sub regimes covering different sectors
Sectoral approaches are controversial and we need to resolve it in our coordination in the African Group
In Fair and Equitable benefit sharing negotiations, Parties were working more on negotiating strategies, like a horse trading process- so what came out of Paris seemed unreal
Crisis in Paris: trading facilitated access to GR in exchange for fair and equitable benefit sharing. This led to the dropping of the bricks and bullets since a lot of the bullets were being promoted through text into the bullets
Montreal, there will be more negotiations on capacity building and TK
The new wording in the draft African text is indigenous people and local communities. But this needs to be discussed further in the African coordination meeting as it may be problematic for some countries.
Comments:
- Africa wants a strong internationally binding regime- but we aren’t clear as to what it will contain
- Regarding parallel negotiations, there is absolutely no co-ordination between what is happening in the ICG at WIPO and what is happening in the CBD. It is important to have a frank exchange of views
- is important that we have a good understanding of IP when we are negotiating ABS
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15.30
Coffee
16.00
Focus on Capacity Building: African Submission, Kabir Bavikatte, South Africa
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- Capacity Building: Discussion of concepts and issues
FISH BOWL EXERCISE:
Participants were asked to look at the Capacity development issues that are coming up for negotiations in Montreal in November 2009. Also to look at the current African position and to see how this can be added to.
A group of 4 sit in a circle with an agent provocateur
Two permanent chairs and the other 2 are transient- you can only speak if you sit on a chair, and if you want your turn, you tap one of the 2 transient chairs so a person can vacate for you.
- We need to emphasize capacity building at the level of ILCs
- We always believe that capacity building is a training process, where we do it through workshops etc. But the problem is as much about how to do than what to do. We should begin to think more about how do we transfer knowledge, how do we then give them the skills to put it into practice, how do we get people to put this knowledge into practice. – We have the knowledge, but we don’t know how
- In the African context, emphasis is on training. Need to emphasize on tech transfer. We also lack investigative journalism
- Need to provide capacity at the government levels also
- Need to focus here on what are the capacities needed to stakeholders at a national level to benefit from the regime. So if we speak of ‘full participation” of African stakeholders, what does this ‘full participation’ mean for communities, scientists (knowledge, infrastructure) etc.
- Many Africans take up degrees in the West- but why don’t they return- because of lack of infrastructure to use their knowledge
- Need clarity as to how much can the IRABS provide and how much should be done at a national level
- Distinguish between capacity building and awareness raising. Aware raising is large. But we also need to be very specific about capacity building- what exactly do the different stakeholders need. Labs, gene finger printing etc.
- Need to prioritize at a regional level, the common capacity gaps, and we develop a plan as to how to do this step by step.
- Tracking and monitoring capacity building- there is only so much the regime can do
- Need a needs assessment for the African continent
- Capacity building- we shouldn’t include too many things, keep the regime broad as a mother law under which we can include a number of things
- Need capacity for research and documentation to ensure that we move beyond being merely passive provider
- Need to put in place institutional mechanisms to capture the capacity- like course on IP, drafting skills etc. this builds the necessary critical mass that we need.
17.30
End of day's programme
