ABS-MT REVISED VERSION

ABS Management ToolInternational Stakeholder Workshop27 and 28 November 2006, Heredia Costa RicaSponsored by SECO and UNU/IASOrganized by IISD, Stratos Inc., Jorge Cabrera ABS-MT REVISED VERSION

ABS-MT: Working Draft distributed at the ABS WG in Thailand, 2005.First draft was widely circulated and presented in several meetings/side events with different stakeholders for obtaining feedback for improving the MT.

Improving the MT Based on lessons and feedback from testing and outreach, the ABS-MT has been revised to: • Focus on core issues for voluntary compliance with the Bonn Guidelines, not necessarily to cover a long list of ABS issues; • Provide useful guidance to good practices related to core issues and successful ABS activities; • Provide guidance on basic conditions for getting started; • Provide a more clear and practical approach for its use, orienting genetic resource users in ABS negotiations; and • Be sufficiently flexible to allow genetic resources users to apply the guidance provided in the MT in the context of different situations (negotiations) while safeguarding the interests and needs of the providers of genetic resources

Improving the MT • Avoid the redundancy found in the first Working Draft MT some Guidance of each Standards or among different Standards • Simplify the language used to provide more clarity about the scope/reach of the outcomes activities • Maintain confidence of the provider of genetic resources about the legitimacy of MT content • Provide practical examples on how the MT content has been applied successfully or successful ABS contracts-permits that are consistent to the MT guidance and content. This version does not provide the examples, but suggests where and what examples could be useful to provide more practical orientation to those who want to use the MT.

Voluntary Compliance Standards Practice Guidance Standards Guidance Additional Guidance Management Process Self Assessment or Verification Worksheet Supporting Tools and Resources Structure of the Revised ABS-MT

Getting Started: basic conditions for the use of the MT 1. Willingness to participate in the abs negotiations • Both the provider and the user must have the willingness to participate in good faith in the ABS negotiations 2. Capacity for Negotiating and Decision Making • For many governmental authorities, communities and indigenous peoples, ABS is an unknown legal and administrative area • the lack of capacity (and the lack of trust in their own capacities) prevents potential providers from being engaged in ABS negotiations 3.Minimum legal framework for using MT • A regulatory framework that enables access to genetic resources to take place.That is, there is no de facto moratorium or prohibition on access. • A process for the formal recognition and approval of requests for access and use must be in place • legal framework in place that effectively governs the negotiation and implementation of contracts, including dispute resolution

Structure ofProposedVoluntary Compliance Standards+ Guidance Voluntary Compliance Standards Prior Informed Consent Criteria Guidance Tips for Grey Areas Mutually Agreed Terms Benefit Sharing ABS Practice Guidance Conservation & Sustainable Use Desired Outcomes Guidance Tips for Grey Areas Traditional Knowledge Community and Indigenous Participation

Voluntary Compliance Standards 1. PIC 1.1 PIC is prior, informed and consented in intent and practice. 1.2 PIC is obtained in writing from the competent government authority, and from the relevant stakeholders, including local communities and indigenous peoples. 1.3 PIC is linked to a commitment to negotiate fair and equitable benefits for each stage of access and use. Genetic resources are used only for the purposes expressly outlined at the time of PIC negotiation, and a new prior informed consent is given for any use that differs in type or scope from that originally outlined. An agreement with the provider that reflects the terms and conditions of PIC including, inter alia, terms and conditions regarding benefit sharing is concluded. 1.4 Where access is obtained from an ex situ collection, including from one or more intermediary, documentation is provided that appropriate PIC exists and that the transaction and intended use are consistent with that PIC, unless there is clear and reasonable explanation that this is not feasible.

Voluntary Compliance Standards 2. Mutually Agreed Terms (MAT) 2.1 MAT are negotiated in a manner that builds confidence and a relationship of trust between owners, managers, or custodians who are the providers and users of genetic resources and that established the basis for a long term, transparent, and respectful relationship and communication between them. 2.2 MAT are negotiated in good faith by both users and providers, respecting the terms and understandings of prior informed consent, allowing benefits to flow to the owners, managers or custodians of the genetic resource, and facilitating access. 2.3 MAT take into account the differences in capacities and needs of the providers, including governments, and indigenous and local communities, holders of ex situ collections, and the intended user organizations, to allow fair processes of negotiation and equitable outcomes in the benefits to be shared.

Voluntary Compliance Standards 3. Benefit Sharing 3.1 A fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge is provided in order to support the compliance with the three objectives of the Convention on Biological Diversity. 3.2 Benefits are provided according to the specific stages of use set out in the PIC agreement (research, discovery, development and commercialization) and renegotiated when the type of use is expected to change beyond the agreed PIC. 3.3.Benefits are shared fair and equitable with all those whohave been identified as having contributed to the resource management, scientific or commercial process, including goverments at different levels, and/or indigenous peoples and local communities and relevant stakeholders who are the owners, managers or custodian of the genetic resources. 3.4 Benefit Sharing arrangements are implemented in good faith, respecting the terms and understandings of prior informed consent agreed for use of the genetic resources collected, and the terms and conditions negotiated in the mutually-agreed terms.

ABS Practice Guidance • Guidance on: • Compliance Standards • Additional Practices • Not fully developed yet • The guidance can serve: • as a menu of steps or checklist for guiding a genetic resource user or provider organization’s ABS management practices; • a set of indicators for reporting or verification of these practices; and • Tips/practical solutions to challenges/grey also presented.

ABS Compliance Standard Guidance PIC • Obtain and comply with all applicable laws and regulations in force in the Country regarding PIC. Meet the identified requirements to comply with PIC Obligations. • Identify the national competent authority and indigenous and local communities and relevant stakeholders and, where possible, determine ownership of genetic resources. In accordance with national legislation PIC may be required from different levels of government. • Ensure compliance with any customary law, traditions or local processes related to the application for and approval of access, to the extent possible. • In the case of genetic resources provided by an intermediary require prove that the organization supplying genetic resources has title to the materials and that it is authorized to supply them for product discovery and development.

ABS Compliance Standard Grey Area Tips PIC What to do if the provider/authority does not have the legal or scientific capacity to negotiate an ABS agreement? • In some cases there will be a need to have independent legal, financial and scientific advice available to the provider of genetic resources, in order to level the playing field with users during negotiation. Be sure that your counterpart has independent legal advise. Monetary contributions from users to providers may be used for the providers to obtain independent legal or other advice. Pro bono, networks of ABS legal experts are emerging. You may find some assistance, for instance, with the Public Interest Intellectual Property Association (PIIPA). See www.piipa.org • To be developed further e.g. short case studies of private and public access where more than one “provider” was involved e.g. communities.

ABS Compliance Standard Guidance Benefit Sharing • Determine the benefit sharing mechanisms jointly between the user and the provider organizations, depending on the types of benefits and specific conditions • Take into account the expressed desires and needs of the other organization/community and its capacities when negotiating benefit sharing provisions, in fair and constructive manner, not to put them at a disadvantage

ABS Compliance StandardGrey Area Tips Benefit Sharing How to address unrealistic expectations on the magnitude and kinds of benefits to be shared • Sharing information honestly about the potential and real benefits to be received is advisable

Additional Practice Guidance CONSERVATION Desired Outcomes e.g. • The collection and/or harvest of wild genetic resources is conducted, using a precautionary approach, at a scale and rate and in a manner that does not exceed the sustainable yield and that does not impair ecosystem structure, functions and services • Domestication and cultivation/captive breeding of genetic resources is conducted in a manner that maintains the genetic variation of the population or diversity of the gene pool Guidance e.g. • Assess the existing knowledge of resources being accessed and the likelihood that new information about biodiversity will arise or be needed. • Assess knowledge of conservation status of the species and population to be sampled/collected, prior to granting of PIC, as well as information on its habitat, ecology and any critical environmental concerns, including other uses/pressures on the resource.

Additional Practice Guidance Traditional Knowledge Desired Outcomes e.g. • The integrity of the traditional knowledge associated with genetic resources that are accessed is respected by the collector of genetic resources and other users. The collection and use of TK is made in such a way as to not affect the integrity, sense and value of the TK, so as to not denigrate it • Fair and reasonable effort is made to preserve, respect and maintain traditional knowledge associated with the genetic resources that are accessed Guidance e.g. • Put in place a process to obtain PIC to use TK associated with genetic resources and promote participation of indigenous peoples and local communities • Demostrate respect and understanding of TK by applying principles on integrity, protection and preservation, compensation/benefit sharing

Management Processes Documentation and Information • Preparing and maintaining good documention is an essential aspect of negotiating and implementing ABS agreements • Documentation of the ABS negotiation process and of its results needs to be maintained by both user and provider organizations • Parties to an ABS agreement should include reporting requirements and milestones in the MAT/contract for: • progress reporting between the user and provider • monitoring that conditions of access and use are being met • monitoring that provision of benefits is being implemented. • Broader public reporting is encouraged • The balance between maintaining confidentiality of sensitive information, and transparency, needs to be a consideration.

Management Process Certificate of Origin/Source/Legal Provenance The MT management process could be a useful source of documentation and tracking practices for a potential certificate to be developed in the context of the International Regime Negotiations

Self Assessment or Verification Worksheet • Provides a tool for checking that ABS compliance standards are being met • Through self-assessment by the user of the ABS- MT • By a verifier, depending on how the ABS-MT is implemented • Practice guidance could be turned into indicators if the ABS-MT is used as a formal standard

Supporting Tools Material Transfer Agreement: Three options to provide a practical MTA tool in the ABS-MT: • Provide links to existing MTAs (e.g. on WIPO Database, used in CGIAR centres, Uniform Biological Material Transfer Agreement, a future BIO model MTA, others) • Provide a basic outline for an MTA, adjusted to the content of the ABS-MT. (e.g. a Contract Outline) • Develop a specific model MTA for the MT

Supporting Tools • User and provider guidance • Information Requirements for PIC • List of Potential Benefits • Links to specific guidelines. e.g. Botanical Gardens Principles, MOSAICC, etc. • Useful links to resources (including legal data bases).

For Discussion • Ho is the user of the MT and for what purposes? • Is the structure and content of the MT useful and practical? • Does it meet the needs and challenge from today? • How can the ABS compliance standards be improved – PIC, MAT, Benefit Sharing? • How can the ABS practice guidance be improved? • Comments on: • Management Processes • Self-assessment or Verification Worksheet

ABS-MT REVISED VERSION