3. Resultados y discusión
3.3 Relación de las variables climáticas con el desarrollo de la enfermedad
Process
Development of policies in the Commonwealth areas began in when a consultative group of Commonwealth, State, and Territory environment ministers produced a report on the implementation and implications of ratifica- tion of the . In , First Ministers established the Commonwealth State Working Group (). The addressed the issue of establishing a nationally consistent system of access arrangements for the Commonwealth, States, and Territories and concluded that a nationally consistent system should focus on broad principles while allowing jurisdictions the freedom to apply those principles in ways which meet their needs and which take into ac-
count their existing policy frameworks.
The development process continued in mid- with the announcement of an inquiry into access to bio- logical resources in Commonwealth areas. The inquiry, initiated by the Minister for the Environment and Heritage, was the most significant event in the development process of regulations. Its main objective was to advise on a scheme that could be implemented through regulations under section of the Environment Protection and Biodiversity Conservation Act of () to pro- vide for the control of access to biological resources in Commonwealth areas. In January the inquiry was advertised in national, state, and territory newspapers. The inquiry received submissions and held two public hearings and consultations with the traditional owners
of the three national parks and their representatives (see
Chapter ).
In September the Minister released the inquiry report for public comment and promoted another one-year period of consultations with Biotechnology Australia de- partments and other agencies. In September , the Minister for the Environment and Heritage released the draft of the regulations for a period of public consulta- tion ending in October . The regulations reflect the scheme proposed by the inquiry and they are likely to be enacted in .
Another significant result of the inquiry was the reacti- vation of the idea of a nationally consistent system as it was proposed by the in . This system would prevent the risk of a “price war” among Australian jurisdictions that could be caused by bioprospectors while shopping for the easiest and most accessible genetic resources. In October , Australia’s Natural Resource Management Ministerial Council released fourteen principles to promote the development or review of legislative, administrative, or policy frameworks for a nationally consistent approach in each jurisdiction (see Chapter ). Therefore, in December the Government of Western Australia released a con- sultation paper to promote the idea of a new act (i.e., A Biodiversity Conservation Act for Western Australia). The new act would include a licensing regime for terrestrial bioprospecting activities to ensure that benefits arising from the exploitation of Western Australia’s biological resources are shared with the Western Australian com- munity, among other objectives. Australia’s policy will be compatible with the ’s International Treaty on Plant Genetic Resources for Food and Agriculture () (see Chapter ).
Concerns
The main concerns identified by the inquiry were: a) ownership of genetic resources; b) intellectual property rights (s) and indigenous knowledge; c) benefit sharing; and d) exclusivity issues. Ownership to genetic resources found in ex situ conditions was a significant issue for scientists, nongovernmental organizations (s), and indigenous groups. Under common law, however, neither a holder nor a buyer can claim ownership to a plant or to the species or genus to which it belongs. The lack of clarity about ownership also applied to in situ resources under state and territory jurisdiction. In this case, leg- islative details vary from state to state. Therefore the inquiry recommended that Biotechnology Australia and the Attorney-General’s Department, in conjunction with the state and territory governments, ensure that information on the ownership of biological resources is compiled and made publicly available.
Indigenous groups were also concerned about the im- pact of ownership or exclusive rights over s of these groups and on access for traditional uses. The inquiry stat- ed that according to Australian law, s on any products or processes derived from ex situ collections or resources
found in in situ conditions belong to the inventor. However, the inquiry stated that it is up to a Commonwealth agency to allow access only if ownership of products derived from genetic resources is shared jointly with the inventor, the Commonwealth agency, and a representative of indigenous communities that may own the resource. Many s and indigenous groups also rejected the idea of patenting life, namely sequences of genes and the organisms that embody these genes. Australian patent law, however, allows this practice. Indigenous groups also argued that their cultural knowledge related to plants, animals, and the environment was being used by scientists, medical researchers, nutri- tionists, and pharmaceutical companies for commercial gain, often without their prior informed consent () and without any economic benefits flowing back to them. In the knowledge that these are significant and sensitive issues for indigenous people, the inquiry recommended further research and consultations with stakeholders.
Scientists were also concerned that the access scheme and the model contract might not be sufficiently flexible and effective to allow the negotiation of benefits in com- mercial and noncommercial access situations. In addition, the access process could inhibit noncommercial research activities. In this regard the inquiry recommended that pro- visions in the proposed model contract should anticipate that most contractual arrangements will be for commercial purposes but that in some cases, provisions should be flex- ible enough to address situations where access conditions for noncommercial initiatives are negotiated.
Exclusivity issues were also addressed during the con- sultation process. In theory parties to a contract should be able to negotiate exclusivity provisions freely. However, the Minister can also assess the fairness of exclusivity provisions in the contract against evidence of proper , mutually agreed terms, and adequate benefit sharing. In addition, contractual provisions of an exclusive nature which benefit the bioprospector should be reflected in the amount of benefits payable to the provider of the genetic resource or traditional knowledge (see Chapter ).
Chile
Process
Chile does not have an policy yet. In early the Ministry of Agriculture developed a proposal for a law to regulate access to agricultural genetic resources that could have facilitated the implementation of the ’s 2,
among other purposes. This proposal was developed with- out public consultation and it was discarded after much criticism. However, efforts to develop a new proposal con- tinue within the Ministry with support from the National Commission of the Environment (). In , published the country’s National Biodiversity Strategy. It should be noted that the strategy emphasizes the need to develop legal instruments to regulate access to genetic resources to ensure fair participation in and eq- uitable distribution of the benefits derived from their use.
The strategy was approved by the ’s ministerial
council (which is the highest environmental policy body in the country) and the National Biodiversity Action Plan was initiated in mid-.
However, Chile’s recent experience in the access and benefit-sharing debate goes back to the early s when the country’s genetic resources were accessed by several bioprospecting projects (see Table of Chapter ). These projects were briefly scrutinized by the press and local s and brought momentum for the analysis of issues at workshops. Government authorities also established a working group to discuss the issue and several meetings were held. In the long run, there were no significant results from this initiative at a legislative or political level. This failure was due, in considerable part, to the complexity of the subject. The process was stalled by the inability to identify solutions to the issue of ownership of genetic resources and the absence of a national biodiversity policy. But the main problem was a lack of political support among legislative and executive decision makers to consider this a matter of importance for the country (see Chapter ).
In mid-, the Foundation for International Environ- mental Law and Development () and the Chilean Fundación Sociedades Sustentables released the findings of a project for an policy in Chile. Some of the project’s conclusions revealed the lack of technical capacity and information about key issues such as the protection of traditional knowledge. Furthermore, the project found great contradictions among those that see the need to regu- late access to genetic resources and those that perceive such regulation as a strategy to legalize the misappropriation of genetic resources and traditional knowledge. One of the most important recommendations of this project is the need to develop a participatory process involving all government and nongovernment stakeholders to facilitate the development of an policy for Chile.3
Concerns
Between and , consultants were hired by - to assess legal and political circumstances and propose a strategy for developing a national regulation for genetic resources. After internal debate, it was concluded that the only way to initiate the development of legislation was by addressing the issue of ownership of genetic re- sources through legislative changes in the property regime of Chile. This conclusion prevented the implementation of further efforts because the Chilean Constitution gives strong protection to private property and any modifica- tions of this regime would require a legislative reform in Congress (see Chapter ).
China
Process
China, like most countries examined in this report, has policies that regulate access to genetic resources4, but
these policies lack benefit-sharing provisions. Therefore, China’s National Report on implementation of the
Convention on Biological Diversity states that a priority action for the country is to draft a genetic resources policy or law that regulates principles, benefit-sharing issues, and s, among other issues.
In late , the State Council of China authorized the State Environmental Protection Administration () to coordinate all issues regarding issues to ensure the implementation of the . Consequently, is currently leading a national project to inventory all genetic resources in China. This includes the participation of experts from many organizations and universities from the agriculture, forestry, fishery, and medical sectors. Also, is as- sembling a team to develop a comprehensive policy or law. Access and benefit-sharing issues are a new topic for Chinese authorities and they are looking for experi- ence and case studies in foreign countries. Governmental officials from different ministries and experts designated by the relevant ministries will participate in the pro- cess development. However, indigenous representatives and foreign consultants are not likely to be invited to this process (D. Xue, pers. comm. December ).
Concerns
So far the main difficulties faced by the process have been the overlapping of functions and lack of coordina- tion between the relevant ministries. is responsible for the implementation of the , but ministries such as the Ministry of Agriculture want to be in charge of access and benefit-sharing issues pertaining to crops, livestock, and fishery production. In addition, there have been dif- ficulties in defining beneficiaries from access activities. Should the state, ministry, organization, or individual receive benefits derived from the country’s genetic re- sources? How should these benefits be allocated? s are also likely to be a major concern and obstacle for the development and implementation of legislation develop- ment and implementation in the future. Chinese genetic resources have been used to develop inventions that have been patented in other countries. Channeling benefits derived from these inventions back to China is a problem that will be addressed by future legislation (D. Xue, pers. comm. December ).