29 Property rights of farmers- African and Bangladesh legislations

Dr. Aneesh V. Pillai

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Table of contents

  1. Learning Outcome
  2. Introduction
  3. Biodiversity and Community Knowledge Protection Act of Bangladesh
  4. African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Access to Biological Resources
  5. Property rights under these legislations- the Bangladesh Act 5.1. Under the AU model legislation
  6. Thammasat Resolution
  7. Conclusion

 

Learning Outcome

Students are able to find out how the space left by CBD could be utilized to transform the comparatively loose concepts like the prior informed consent and benefit sharing into solid property rights. They will also be able to compare the Indian Biological Diversity Act with these legislations and find out how poorly our legislation is drafted as far as Farmers’ Rights are concerned.

Introduction

It was seen in the context of CBD as to the two concepts which were developed therein. They are

  1. Obtaining of prior informed consent
  2. Benefit sharing.

Actually both these are possible only when the farmers have some right over the PGR which they developed. As is common knowledge, a person’s approval or consent is asked for before entering into a premise, when he is the owner of the property, or at least when he is in possession of it. Thus, while recognising a prior informed concept, CBD makes it clear that a property right can be given to the farmers over the PGR. But the problem is the identification of these farmers, especially when it comes to traditional plant varieties. It is in this context that two legislations assume importance, and can even act as a model for India to redraft her Biological Diversity Act. These legislations are, Biodiversity and Community Knowledge Protection Act of Bangladesh, African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Access to Biological Resources. Alongwith these legislations, there is a Thammasat Resolution also.

Biodiversity and Community Knowledge Protection Act of Bangladesh

The main provisions of this Act give the farming communities property rights over the resources on which they depend for their livelihood. The following provisions of the Act may be noted:

“The State will… recognize the original rights of indigenous and local communities, farming and fishing communities, and other communities that are directly linked through their livelihood practices to particular ecosystems and to the related knowledge, innovation and culture specific to that livelihood. These rights will be considered inviolable due to the role of these communities as custodians and stewards, thereby establishing their primary and Residual Title over the resources remaining aware of the rights of women in particular, to the formal or informal communal systems of innovation through which they produce, select, improve and breed a diversity of crop, fish, poultry and livestock varieties; the plant varieties, micro-organisms, fish and aquatic life forms, livestock, traditional medicines, agricultural practices and devices, and technologies produced through these systems; the human genetic diversity; all species and varieties of life forms and genetic resources covering the whole range of biological diversity of all genera and species, including microorganisms; and any other life form not explicitly included above.

In determining the access and use rights of the communities the rights of the Residual Title holders will prevail over other Communities. The State shall recognize, establish and protect the rights of the Communities to collectively benefit from their knowledge, innovations and practices acquired through generations (past, present and future) and to receive compensation for the conservation of biological and genetic resources in accordance with the provisions of this Act and subsequent regulations as well as in accordance with the rights and obligations enshrined in the Convention on Biological Diversity.”

“The sovereignty of the State over the biological and genetic resources and the related intellectual and cultural knowledge and practices will always be given effect through the Communities.The State, but only through Communities, shall at all time and in perpetuity be the lawful and sole owners, custodians and stewards of biological resources, knowledge and innovation related to these resources. No biological or genetic resource and no intellectual and cultural knowledge and practices related to them as well as innovations arising out of them, shall be sold, assigned, transferred or dealt with in any way whereby the status of the Communities as the common owners, custodians and stewards of the resource or the innovation, or the integrity of the resource or the innovation, is impaired.”

“The biological and genetic resources and the intellectual and cultural knowledge and practices as well as any innovations arising from these shall not be sold, assigned transferred or dealt in any manner without explicit Prior Informed Consent and effective participation of the Communities concerned. The Communities will always have the right to refuse transaction based on gainful intent or any commercial utilization, exploitation and exchange. The State shall ensure that at least a defined percentage of benefits, not less than 50 percent of the net monetary gain, obtained from a direct or indirect commercial use of biological and genetic resources in which the Communities are the common owners, sole custodian and stewards be paid to the concerned local community or the group constituted as a Community”

Thus these provisions cover both aspects of CBD called the prior informed consent and benefit sharing. Regarding prior informed consent, the provisions are much stronger and effective, as they are given the right to refuse access to the resources they maintained, which is not the case in our legislation. In the case of benefit sharing also there is a more than fifty per cent of share to be given to the community.

African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Access to Biological Resources

Section 5 : “Any access to biological resources, knowledge and or technologies of local communities shall be subject to the written prior informed consent of:

 

i) the National Competent Authority; as well as that of

ii) the concerned local communities, ensuring that women are also involved in decision making.

 

Any access carried out without the prior informed consent of the State and the concerned local community or communities shall be deemed to be invalid and shall be subject to the penalties provided in this legislation or any other legislation that deals with access to biological resources.

 

The National Competent Authority shall consult with the local community or communities in order to ascertain that its/their consent is sought and granted. Any access granted without consultation with the concerned community or communities shall be deemed to be invalid and in violation of the principle and requirement for prior informed consent as required under this Article17.”

 

“Any access to a biological resource, innovation, practice, knowledge or technology, shall be subject to the prior informed consent (PIC) of the concerned community or communities ensuring that women fully and equally participate in decision making.

 

Local communities have the right to refuse access to their biological resources, innovations, practices, knowledge and technologies where such access will be detrimental to the integrity of their natural or cultural heritage. Local communities shall have the right to withdraw consent or place restrictions on the activities relating to access where such activities are likely to be detrimental to their socio-economic life, or their natural or cultural heritage.”

5. Property Rights under these legislations- The Bangladesh Act

“The State recognizes the rights of communities over the following:

  • Their biological resources;
  • The right to collectively benefit from the use of their biological resources;
  • Their innovations, practices, knowledge and technologies acquired through generations;
  • The right to collectively benefit from the utilisation of their innovations, practices, knowledge and technologies;
  • Their rights to use their innovations, practices, knowledge and technologies in the conservation and sustainable use of biological diversity;
  • The exercise of collective rights as legitimate custodians and users of their biological resources;

Apart from these rights over the biological resources, the Community is given Intellectual Rights also. Even without any formal registration, this right is recognized. Apart from the community rights, there is a category of rights devoted exclusively for farmers.

Farmers’ Rights under AU legislation

The Act has created a unique way of entailing property right to the farmers for their traditional varieties as well as newly developed varieties, in the following manner.

Section 25

  • Farmers’ varieties and breeds are recognized and shall be protected under the rules of practice as found in, and recognized by, the customary practices and laws of the concerned local farming communities, whether such laws are written or not.
  • A variety with specific attributes identified by a community shall be granted intellectual protection through a variety certificate which does not have to meet the criteria of distinction, uniformity and stability. This variety certificate entitles the community to have the exclusive rights to multiply, cultivate, use or sell the variety, or to license its use without prejudice to the Farmers’ Rights set out in this law.”

Farmers rights include, the protection of their traditional knowledge relating to plant and animal genetic resources, the right to obtain an equitable share of benefits arising from the use of plant and animal genetic resources, to participate in making decisions, including at the national level, on matters related to the conservation and sustainable use of plant and animal genetic resources; to save, use, exchange and sell farm-saved seed/propagating material of farmers’ varieties, to use a new breeders’ variety protected under thislaw to develop farmers’ varieties, including material obtained from gene banks or plant genetic resource centres; and to collectively save, use, multiply and process farm-saved seed of protected varieties.

Thammasat Declaration

45 representatives of indigenous, peasant, non-governmental, academic and governmental organizations from 19 countries, came together on December 1-6, 1997 at Thammasat campus outside Bangkok, Thailand, for an international seminar on Sui Generis Rights co-organized by Biothai and GRAIN. They met to study, assess and develop their response to the increasing privatization of biodiversity and local knowledge, especially as driven by the Trade Related Intellectual Property Rights (TRIPS) agreement of the World Trade Organization (WTO) and resulting legislation at the regional and national levels. They focused in particular on the sui generis rights option for intellectual property over plant varieties as imposed on all WTO member states by the TRIPS Agreement, as well as on other international agreements related to biodiversity such as the Convention on Biological Diversity (CBD).

In Thai, “Thammasat” means “knowledge of nature.” It also means “justice.” Indigenous peoples, farmers and local communities have, over millennia, nurtured and developed the biodiversity on which humanity now depends. They have been wisely using their knowledge of nature to create sustainable food and health systems based on sharing their knowledge and biodiversity with others. Such community systems are being destroyed by economic development under the guise of free trade, Green Revolution agriculture and the new biotechnologies, and globalization. They are also being destroyed by the rampant pirating and monopolization of biodiversity and related knowledge through the extension of intellectual property rights (IPR) to life forms.

The Thammsat Declaration also was worried that no country exemplifies their concerns about WTO-enshrined globalization as our host country. The Declaration further holds that the WTO TRIPS Agreement obliges developing countries to provide some form of IPR on plant varieties by the year 2000. This may be done by patents or by some “sui generis” rights system-meaning, in Latin, a system “of its own kind.” In 1999, one year before implementation in the developing countries, this provision will be reviewed and we are preparing ourselves for this review.

The main theme of the Resolution can be seen in the following provisions

“Our understanding of sui generis rights in TRIPS

The overall implication of TRIPS, and for that matter the whole of the WTO, is highly detrimental to peoples’ economies, cultures and livelihoods.

The sui generis provision of TRIPs gives WTO member states room to develop their own kind of IPR protection for plant varieties, and many nations are now changing their national IPR laws.

While some people look at the sui generis option in TRIPS as a window through which other forms of rights over biodiversity can be articulated in legislation, it is our conviction that such rights will be linked to IPR and will result in new and further monopoly rights over plant varieties.

The same is true of any sui generis rights option which could be developed and proposed under the TRIPS agreements for local and indigenous knowledge.

The reaffirmation of our sui generis rights

 

“Sui generis” perfectly describes the rights and systems we are struggling to defend-our “own kind” of rights and systems. We recognize our sui generis rights to exist independently of the IPR-based sui generis systems promoted by the TRIPS Agreement.

Our rights are inalienable; they existed long before IPR regimes were established. As legal, political, economic, social and cultural rights, they are part of peoples’ sovereignty and therefore part of human rights.

As community/collective rights, they are indivisible and intergenerational; they include Farmers’ Rights and apply to Indigenous Peoples, peasant and family farmers, fisherfolk and other local communities which derive their livelihoods from biodiversity.

Their place and expression is firstly at the local level, but they must also be recognized and guaranteed at the national and international levels.

The rights that we are struggling to develop, defend and let flourish should never be misinterpreted as, or denatured into, intellectual property rights.

Because peoples’ rights are under tremendous threat, we see the promotion of such rights also as a tool for resistance against, and the rolling back of, the forces of monopoly.

 

It is on this basis that we will actively engage our societies from the village level through to our governments in the capitals to take part in the struggle for our sui generis rights, and on to the international level to oppose IPR on all forms of life. This implies a whole range of information, research, campaign and coalition building activities over the long term. Some of the immediate tasks at hand are to:

  • Demand the revision of TRIPs in order to allow countries to exclude life forms and biodiversity-related knowledge from IPR monopolies under the jurisdiction of WTO.
  • Reinforce the defense mechanisms of local communities who are highly vulnerable to unbridled bioprospecting and to the introduction of genetically engineered organisms.
  • Support any calls by local communities for a moratorium on bioprospecting, and demand an immediate moratorium on the research, development, release, and transboundary movement of genetically engineered organisms.
  • Assert the primacy of international agreements on biodiversity, such as the CBD and FAO instruments, over TRIPs and other trade regimes, for the resolution of these issues.
  • Reaffirm the original intent of the CBD for the conservation and sustainable use of biodiversity and prevent the CBD from becoming a mechanism for transnational corporations to trade in biodiversity in the name of “access” and “benefit-sharing.”
  • Mobilize a strong global movement engaging environmental, trade, agriculture, consumer, labor, health, food security, women’s, and human rights and all people’s organizations in these campaigns.

In the spirit of justice and embracing all knowledge of nature, we commit ourselves to the Thammasat Action Plan and invite other organizations, movements and peoples to join us in the struggle to achieve this vision. Thus, this Declaration, which is just a declaration emphasised on the Farmers’ rights, over the rights of the persons who seek access to their biological resources.

7. Conclusion

 

These two legislations show the scope of development of FR in many respects. These legislations make PIC and benefit sharing as the rights of the farmers. Apart from this, the farmers are also given property right like that of PBR for varieties of specific trait in a collective manner, and property rights over their PGR and TK. This comparison is made just to show the desperate way in which the BDA is drafted in spite of a very high level of scope for creating solid rights for farmers. These two legislations point to the fact that, by being a party to CBD can mean to have a legislation with more rights to farmers (and those who hold biological resources) than what is envisaged under the CBD. The Indian Act on the contrary has created a poor legislation out of CBD, with no rights to the indigenous peopleor local communities like the farmers.

 

However, it is not too late for India to opt for better. These legislations, and Her own experiences will definitely guide Her for further looking at BDA. So, this module concludes that, due to the above mentioned problems, BDA requires a substantial revision. This revision needs restructuring the enforcement machinery, revitalizing the principles of PIC and benefit sharing into rights, to identify the farmers who conserve, preserve and develop the PGRFA and TK of protected varieties.

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Reference

  1. http://www.farmersrights.org/database/bangladesh.html
  2. http://www.fao.org/3/a-i5251e.pdf
  3. http://ssa.foodsecurityportal.org/regional-sub-portal-blog-entry/sub-saharan-africa/609/input-markets
  4. Pardey, P. (2006). Agricultural R & D in the developing world. Washington, D.C: International Food Policy Research Institute.
  5. Schanbacher, W. (2010). The politics of food. Westport, CT: Praeger Security International.