Lessons learnt form the SA Bioprospecting Framework

1. Lessons learnt form the SA Bioprospecting Framework Johanna von Braun, PhD University of Cape Town, South Africa 8 September, 2010

2. Origin of the Act • Based on principles put forward by CBD/ABS discussions • SA not active in run up to CBD, but member since 1995 and active since in ABS negotiations under DEA • National Policy Formulation • Biodiversity White Paper 1997 • NEMBA 2004 • Regulations 2008

3. Process • White Paper • Two years of consultations NEMBA • Seven years in making Regulations: • Three national workshops • provincial consultations Cape Town, Durban, Nelspruit and Pretoria. • representatives from national and provincial government departments, research institutions, traditional healer organisations, private firms, and non-governmental organisations. • Written input in response to the gazetted draft • 15 drafts in total

4. Overview Legislation

5. TK Under Protection • Only covers TK that is associated with indigenous biological resources

6. Protection Model • State takes role of oversight • TK holders remains in charge of deciding on allowing access under what conditions • TK user in charge of demonstrating that provider conditions are met • Defensive and positive protection

7. Defining Traditional Knowledge • Def: Traditional Use or Knowledge: • Customary utilisation or knowledge of IBR by an indigenous community, in accordance with written or unwritten rules, usages, customs or practice traditionally observed, accepted and recognized by them, including discoveries about IBRs Advantages • No fixation, no originality, perpetual, open ended

8. Defining Community • Def. Community • Community of people living or having rights in interest in a distinct geographical area, with a leadership structure and • Whose TK & use of the IBR has contributed to the bioprospecting • Definition related to geographical area / use / leadership structure Challenges: • Who should benefit? Group of people within community / entire community? • How to identify leadership • Cross border Partial Solution: - Community resolution – community defines itself & leadership structure

9. Ownership of TK • Ownership of TK • Ownership of TK can be individual & collective • Ownership open ended Ownership of IBRs • Linked to landowner - constitutional issues? Challenges • Silent on broadly known TK • Individual ownership allows for abuse • Genetic resources not ownership of wider public • Government only benefits if IBRs from government owned land • E.g. Nestle case – who should be the beneficiary? Solutions - Ownership of TK non-exclusive – if one community enters into BSA other can too

10. Benefits from TK • Monetary Benefits • Establishing of trust fund which all moneys arising from benefit sharing / MTA must be paid • All money for the benefit of stakeholders • DG must manage the fund & is accountable • Distribute money in accordance of agreements • Surplus money to conservation, related research, capacity development of communities Non-monetary benefits • Listed in form • Highlights particular benefits for communities

11. TK in the public domain • No distinction btw secret TK and TK in public domain • Public availability different from public domain • Only because something is known doesn’t give you the right to use • Still need to share benefit with TK holder Challenge: • How do you find out about who owns TK? • Companies are obliged to go searching for TK

12. Enforcement • Penalties – involves criminal measures – up to 5 yrs in jail and/or 5 Mio ZAR / 10 Mio second conviction • Dealing with retroactivity: Framework applies to ongoing bioprospecting activities that have commenced before 2008. 6 months transition phase to register all ongoing projects. • Challenges – enforcement not being applied