Some of the in situ biodiversity conservation and sustain- able use activities listed by Article of the include: a) establishing a system of protected areas; b) promoting the protection of ecosystems, habitats, and populations; and c) adopting measures to avoid or minimize impacts on the use of biological diversity. Even before the came into force, bioprospecting was identified as a potential source of funding and technical expertise to promote the conserva- tion of biodiversity and its sustainable use (S et al. ).
Australia: Draft EPBCAR
The purpose of the regulations is to provide for the control of access to biological resources in Commonwealth areas while promoting the conservation and sustainable use of biological diversity. Therefore, the regulations and a
model benefit-sharing agreement will include a require- ment that at least some of the benefits under the contract should promote biodiversity conservation in the area where samples are collected.
The regulations will also require an when bio- prospecting activities are likely to have a significant im- pact on the environment. If this is the case, within days after receiving the access application the applicant must provide the Minister of the Environment and Heritage with information about the potential environmental impacts of the proposed access. Within days of receiving such information, the Minister must publish a notice inviting anyone to comment on the likely impacts, and within five days after the end of the period given in the invitation for comments, the Minister must give the applicant a copy of the comments received. Finally, the applicant must give the Minister a response to these comments. There is no timeframe for such a response, but presumably, it is in the applicant’s interests to respond expeditiously. Then, at intervals of less than months, the Minister must invite applications from anyone who wants to be informed of applications for access permits where an by public notice is required. The Minister is also required to keep a register of information about permits. The register must be available for public scrutiny. However, information is not be included in it if the Minister believes the information is confidential or culturally sensitive (see Chapter ).
Colombia, Ecuador, and Peru: Decision 391
Decision regulates access to the region’s genetic re- sources in order to promote the conservation and sustain- able use of biodiversity, among other reasons. This law also encourages the development of projects and technolo- gies that promote the conservation and sustainable use of biodiversity and its derivative products that contribute to the well being of local communities. Therefore, access applications, access contract, and accessory contracts must include conditions that support research activities that promote the conservation and sustainable use of biodiversity. Bioprospectors should be guided by the precautionary principle.
Under Decision , the Andean committee on ge- netic resources will also design and implement programs to ensure the conservation of genetic resources and will analyze the viability and convenience of an Andean fund for the conservation of these resources. This approach is already being followed at a national level. The Peruvian draft regulation on access to genetic resources proposes the creation of a national trust fund for the conservation, research and development of genetic resources.
Each country may also require an from access applicants and this information will be included in a file that will be available for public scrutiny. In addition, member countries may also impose partial or full access restrictions if they identify that access activities may: a) endanger or threaten rare, endemic, or any other species, subspecies, variety, or race; b) endanger the structure or
function of ecosystems; c) cause undesirable or uncon-
trollable environmental and socioeconomic impacts; d) cause biosafety impacts; and e) affect genetic resources or strategic regions. In Peru, under Law No. , may reject the registration of the license signed between bioprospectors and representatives of indigenous com- munities if national environment authorities prove that access activities will cause damage to the environment and parties to the agreement refuse to mitigate such dam- age (P C ).
Costa Rica: The Law of Biodiversity
The general goal of this law is to promote the conser- vation and sustainable use of biodiversity and to ensure the fair and equitable sharing of benefits derived from it. Therefore, the law establishes that up to % of the research budget and % of royalties of access projects will go to the national system of conservation areas, the private owner, or indigenous community. Conservation of ecosystems is also one of the criteria stated by the for the evaluation or approval of the access applications.
The also allows the imposition of restrictions on access to genetic resources to ensure their conservation and sustainable use. “To establish complete or partial restric- tions some of the elements that will be considered are: a) the danger of extinction of the species, subspecies, race, or variety; b) reasons of scarcity and endemic conditions; c) vulnerable or fragile conditions in the structure or function of the ecosystems; d) adverse effects on human health, the species, and the ecosystems or on essential elements of the autonomy or cultural identity of peoples and communities; and e) strategic genetic resources or geographical areas qualified as such.” (see Chapter ). Access for military purposes is to be prohibited in all cases. An can also be requested by the .
Malaysia:
Draft federal bill on access to genetic resources
Under this draft law, when an access application is made the official carrying out the evaluation of the application will take into consideration: a) the conservation status of the resource that will be collected or used; b) the contribu- tion of the project to the conservation and sustainable use of the biological resources; and c) adverse impacts, risks, and dangers of the project to any component of biologi- cal diversity and its sustainable use. Bioprospectors are required to submit an environmental and socioeconomic impact assessment.
When traditional knowledge cannot be attributed to a particular community another provision of the bill propos- es the establishment of a common trust fund. The purpose of the trust fund will be not only to promote the welfare of indigenous communities, but also for the conservation and sustainable use of biodiversity (see Chapter ).
Mexico: EEEPGA, WGA, SFDGA, and draft LAUBGR
One of the goals of the is to promote the conser- vation of biological diversity. Access will not be granted
if bioprospecting activities are likely to compromise the viability of species, habitats, and ecosystems. Article states that any income received from permits, authoriza- tions, and licenses (derived from bioprospecting projects) will be used to promote the conservation and restoration of biodiversity in the areas where specimens were collected. Also, the provides for the implementation of studies when any activity is likely to cause damage to lo- cal ecosystems or public health. Furthermore, Article of states that any utilization of forest resources, either for commercial or noncommercial purposes, in areas which are habitats for endemic, threatened, or endangered species of native flora and fauna, must be done without altering the environmental conditions which allow their subsistence, development and evolution ( ). Similarly, Article of emphasizes that permits will not be granted if collecting activities affect the viability of populations, species, habitats, and ecosystems ( ).
Two of the main objectives of the draft are to regulate the access to genetic resources and to ensure the conservation of biological and genetic resources. The draft law also proposes the establishment of a trust fund for the conservation and use of genetic resources and re- quires an of proposed activities including measures that will be taken to mitigate negative impacts (G P ).
Nicaragua: Draft Law of Biodiversity
The draft law regulates access to genetic resources while conserving biological diversity. Access to genetic resources will require an environmental permit that must be issued based on a previous analysis of environmental impacts and risks of access activities. The evaluation of access applica- tions will take into account whether proposed activities contribute to: a) the conservation and sustainable use of biological and genetic resources and b) the preservation of endemic, threatened, or endangered species. Access will be denied when access activities: a) endanger or threaten one or more species and b) cause uncontrolled ecological, social, economic, and cultural environmental impacts. In any case, the National Biodiversity Institute will take into account the precautionary principle to ensure that access activities do not deplete biological diversity.
Philippines: EO 247 and Wildlife Act
Under , access applicants, the government, and local communities may define actions to ensure conservation of biological diversity as part of benefit-sharing agreements. However, this is up to the parties. There is no financing mechanism or trust fund in place to support biodiversity conservation objectives. The Wildlife Act provides such a mechanism. Under the act a wildlife management fund is created to finance restoration of habitats affected by activities committed in violation of the law. The fund also supports scientific research, enforcement and monitoring, and local capacity-building activities.
wildlife species and their habitats to promote ecological
balance and enhance biological diversity; b) regulate the collection and trade of wildlife; and c) initiate or support scientific studies on the conservation of biological diver- sity. Access applicants may be asked to prepare an . This is usually required for projects that will carry out activities in environmentally critical areas. However, no has ever been required from any applicant (see Chapter ).
The draft Guidelines for Bioprospecting Activities (see endnote ) state that local communities shall ensure that the funds received are used solely for biodiversity conservation or environmental protection, including alter- native or supplemental livelihood opportunities for com- munity members. Furthermore, any bioprospecting activity involving species listed under and the Red List shall be governed by these guidelines in addition to specific regulations on the conservation of these species.
Samoa: CABSSBR
Samoa’s conditions make no reference to the use of benefits from bioprospecting for conservation purposes. However, once the access application has been submitted the Minister of Lands, Surveys, and Environment may require an to be conducted.
Thailand: PVPA, RFSRCFA, and APPTMI
and provide for the establishment of trust funds called the “Plant Varieties Protection Fund” and the “Fund on Traditional Thai Medicine Intelligence” respectively, to promote activities related to the conserva- tion, research, and development of plant varieties and the conservation and promotion of intelligence on traditional Thai medicine, respectively. requires studies for access activities likely to have a negative environmental impact and proposes the development of a “Plan for the conservation of herbs” to promote the conservation of areas where animals, plants, bacteria, and minerals used for the development of medicines are found.
does not specifically promote the use of bio- prospecting benefits for biodiversity conservation activi- ties. However, conservation is one of the mandates of the Royal Forest Department and it is safe to assume that a share of potential profits will go to this purpose. states that access permits may be cancelled if bioprospect- ing activities cause negative impacts to the environment and to natural, biological, and genetic resources. If samples are collected, one duplicate must remain in the facilities indicated by . If there is only one specimen available, it must remain in Thailand (C. Hutacharern, pers. comm. June ).
USA: NPS research specimen collection permit
The operates consistently with the main conservation principles provided in the . Bioprospectors that profit from research involving national park resources are ex- pected to invest the benefits resulting from their research in the conservation of the park’s biological diversity. Under , authorities may also require bioprospectors to
determine the environmental impact of proposed activities (see Chapter ).
Analysis:
In situ Biodiversity Conservation and Sustainable Use
All of the laws and policies mentioned above, except for Samoa’s conditions, promote the conservation of biological diversity and trust funds are the main strategy to collect and distribute monies for conservation and sus- tainable use goals. But, in most of these countries, these are stated as general goals, and it is up to government authorities and access applicants to negotiate biodiversity conservation activities as part of benefit-sharing agree- ments. Costa Rica’s Law of Biodiversity is the only policy that specifically states that bioprospectors must invest a percentage of the research budget and royalties in the areas where genetic resources are collected. If the collection site is part of the national system of conservation areas, benefits are likely to go into conservation initiatives. However, if collections take place in other public land, or in private or indigenous land there is no guarantee that benefits will go into conservation activities (see Chapter ).
Article () of the states that Contracting Parties must “create conditions to facilitate access to genetic re- sources for environmentally sound uses”.33 All of the
countries examined above may require bioprospectors to present some sort of proof (i.e., ) that access activities will not have a negative impact on biological diversity and ecological processes. In some cases the scope of the is broadly defined to include social and economic impacts. This is a justifiable concern given available evi- dence of negative impacts in the past. D () and P (), for example, report that the collection of leaves from wild jaborandi (Pilocarpus jaborandi) by an American-Brazilian bioprospecting project had a nega- tive effect on the shrub as well as on the local economy and community that had become totally dependent on the commercial exploitation of the species. Similarly, in Kenya the National Cancer Institute was responsible for harvesting the whole adult population (, kg) of the shrub Maytenus buchanii that is the source of the can- cer compound maytansine (O ). Furthermore, species such as Trilepidea adamsii, an endemic mistletoe of New Zealand, and Tecophilaea cyanocrocus, an endemic lily of central Chile, are extinct because they were overcollected ( K ). It is uncertain whether these species were critical to the survival of other species and to the structure or function of the local ecosystem. But if this were the case, both the ecosystem and the species dependent on the target species may have been affected by these bioprospecting activities.