11 Biodiversity Law

Ms Alphonsa Jojan Joseph

1. Introduction

Biological diversity (often referrred to as biodiversity) is considered to be the whole ‘Life on Earth’.1 While biodiversity has been providing humankind with various economic, genetic, ecological, social, cultural and aesthetic services, t here has been significant loss and reduction of b iological diversity due to certain human activities.2

Agenda 21, a key output of the United Nations Conference on Environment and Development held in 1992 (the Rio conference), mainstreamed the biodiversity conservation agenda . In addition, 2010-2020 has been declared as the interna tional decade of biodiversity by the United Nations. The Conference of Parties to the Convention on B iodiversity has also adopted the Aichi Targets , which are time-bound targets to be achieved by the end of 2020 (some of them even earlier).

The unit will refer to the Conve ntion on Biological Diversity and the Cartagena Protocol on Biosafety (at the international level), and the Biological Diversity Act, 2002, the Biological Diversity Strategy and Action Plan, and the Environm ent (Protection) Act, 1986, etc. (at the national level). Issues relating to access to biological resources and benefit sharing are addressed in another unit.

2. Learning Outcome

This unit intends to provide a basic understanding of the concept of biodiver sity, its importance and threats to biodiversity. It will al so look at the existing legal framework for biodi versity conservation and sustainable use in India. Special emphasis is given to legal provisions relating to knowledge associated with biodiversity, issues relating to biodiversity conservation like sustainable collection of biological resources, adverse effect of d evelopmental projects on biodiversity, and thrreats due to genetically modified organisms.

3. Biological diversity, its value and threats to biological diversity

Nations came together in 1992 and pledged conservation and sustainable use of biological diversity by adopting the Convention on Biological Diversity (CBD). The CBD is based on a broad ecosystem approach rather than separately dealing with particular ecosystems/species/sites, which is the basis of the conservation approach in other international instruments like the Ramsar Convention on Wetlands, the Convention on International Tra de in Wild Species of Endangered Flora and Fauna, and the Convention on Migratory Species. The CBD covers both wild biodiversity which includes wild animals, plants and micro-organisms; and domesticated biodiversity which includes cultivated animals ,plants and micro-organisms in farms, gardens, etc.

3.1. Understanding “Biological Diversity”

The Convention on Biological D iversity defines ‘biological diversity’ (often refer red to as biodiversity) as the ‘variability among the living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of ecosyste m’ (Article 2).

1 Pearce, David and Dominic Moran . Economic Value of Biodiversity. Earthscan: Londo n, 1995.

2 Preamble, Convention on Biologic al Diversity (1992).

The three components of biodive rsity are ecosystem diversity, species diversity a nd genetic diversity.

3.2. Value of Biological Diversity

Biodiversity provides economic services like continuous production of food, fibre, fuel, fodder; and ecological services like purific ation of air and water, moderation of floods , droughts, temperature extremes, and other kinds of ser vices for the survival of mankind and other living beings.4

3.3. Threats to biological diversity

Human activities have been threatening and reducing biodiversity. The followin g have been identified as the main threats to biological div ersity:5

a) Habitat destruction and degradation ;

b) Unsustainable usage and harvesting practices;

c) Climate change and des ertification;

d) Introduction of invasive alien species;

e) Impact of pollution and developmental projects.

In order to address these threats, nations have pledged concerted actions in a holi stic manner of protection (like the ecosystem approach) to conserve and sustainably use biodiversity in the CBD.

4. Conservation of biological diversity

With 8.1 per cent of the world’s diversity, India is one of the twelve mega diverse countries of the world based on high level of endemis m and species richness (TPCG & Kalpavriksh, 2005: 13). India has a diverse variety of ecosystems c overing two biodiversity hotspots, the Himalayan mountain systems, the deserts of Rajasthan, the Aravalli Range, Islands, wetlands and other marine systems etc. India also has significant species and genetic diversity. It is reported that about 45,000 to 47,000 plant species representing 11 per cent of the k nown world flora; and 90,000 species of fauna, a little over 7 per cent of the world’s reported animal diversity, occur in India (TPCG & Kalpavriksh, 2005: 14). In addition, at least 166 species of crops (6.7 per cent of the total crop species in the world) and 320 species of wild relatives of cultivated crops are believed to have originated in India (TPCG & Kalpavriksh, 2005: 14).

India also has the widest range of animal breeds within each species (e.g. 20 breeds of goat, 42 of sheep, 15 of buffalo, 30 of cattle an d 18 of poultry), representing a significant percentage of the world’s domesticated livestock diversity (TPCG & Kalpavriksh, 2005: 15).

Even before ratification of the Convention on Biodiversity, India had initiated and undertaken various efforts to conserve its national biodiversity. At present, the conservation o f biological diversity is undertaken using different meas ures, which are discussed in this section.

4.1.In-situ conservation

In situ conservation is conserv ation in the natural habitat and it is considere d to be the fundamental method of conservation as stated in the Convention on Biological Diversity. In situ conservation is defined in both the Convention on Biological Diversity (Article 2) and the Biological Diversity Act (explanation to section 36) to me an the following:

Conservation of ecosyst ems and natural habitats;
Maintenance and recovery of viable populations of species in their natural surroundings;
Domesticated or cultivat ed species – the surroundings where they have d eveloped their distinctive properties

As a part of its efforts for wildlife conservation, India has established a network of 668 protected areas (PAs) under the Wildlife Prote ction Act, 1972 (WLPA) comprising 102 Natio nal Parks, 515 Wildlife Sanctuaries, 47 Conservation R eserves and 4 Community Reserves.6 The imp ortant features of these protected areas as follows:

a) National Parks establis hed under section 35 of WLPA are areas, which are of adequate ecological, faunal, floral, geomorphological, natural or zoological significance declared by the government for the prot ection, propagation and development of wildlife and its environment7 The area comes under the control and management of the government (through Chief Wildlife Warden) (section 35(8)).

b) Sanctuaries are establis hed under section 18 of WLPA for the same pu rpose as National Parks and have similar management, but the Collector may allow, in conssultation with the Chief Wildlife Warden, the continuance of any right of any person in or over any land within the limits of a sanctuary;

c) Conservation Reserves a re government land, particularly the areas adjace nt to National Parks and sanctuaries and those areas which link one protected area with another, declared as conservation reserves after consultation with local communities for the protection o f landscapes, seascapes, flora and fauna and their habitat (section 36A);

d) Community Reserves a re private and community land declared by the government for the protection of fauna, flora and traditional or cultural conservation values and practices, whenever the individual or the com munity has volunteered to conserve wildlife and habitat (section 36C).

Besides, there are special conservation and management efforts for particular species like the tiger and the elephant and the government has established approximately 39 Tiger Reserves and 28 Elephant Reserves under various Centrally Sponso red Schemes.8 It is pertinent to mention that the 2006 amendment of WLPA led to the insertion of sec tion 38V, which provided legal backing for tiger reserves. The Biological Diversity Act also provides for constitution of areas of biodiversity importance as Biodiversity Heritage Sites (section 37).

As mentioned above, managem ent of national parks and sanctuaries is undertaken by the Forest & Wildlife Department of the State Government. and the conservation efforts exclude people. Displacement or threats of displacement of pe ople/communities living in national parks, sanctuaries, tiger reserves or dependent on those areas is one of the issues that stems out of these exclusionary conservation efforts.9

4.2.Ex-situ conservation

Ex-situ conservation is undertakken outside natural habitats such as botanical g ardens, zoos, deer parks, safari parks, aquaria as a means of ‘backing up’ the diverse range of species. Various biological resource repositories are notified under se ction 39 of the Biological Diversity Act, 2002.

4.3. Community Conserved Areas

There are several areas including in situ and ex situ ??? that have been conserve d by local communities. These include their traditionall y occupied habitats, sacred groves, farmers’ fields, gardens, etc. As mentioned earlier, the conservat ion efforts were exclusionary in nature. But the J oint Forest Management Circular, 1999 and the 2002 amendment to the Wildlife Protection Act which in cluded conservation and community reserves under the purview of Protected Areas initiated the process of recognising the communities’ right to conserve a nd manage biodiversity rich areas. India’s National Biodiversity Strategy and Action Plan 2008 s also ac knowledges the contribution of local communiti es in the conservation of biodiversity and stated that the expansion of the protected areas network will dep end on the recognition of community conserved areas. M oreover, the Scheduled Tribes and Other Tra ditional Forest Dwellers (Recognition of Forest Rights) A ct, 2006 has recognised the Scheduled Tribes and Other Forest Dwellers’ ‘right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use’ (section 3(1)(i)).

5. Efforts for conservation and sustainable use of biological diversity: Specific Areas

There have been efforts to in tegrate conservation and sustainable use of bi odiversity into national decision-making through policy statements, legislative measures and programmess.

The Biological Diversity Act, 2002 aims at conserving biological diversity, sustainable use of its components and fair and equita ble benefit sharing (see Preamble). Section 36 of the Act provides for duties of the Central and State Governments for conservation and sustainable use of its components.

5.1. National Biodiversity Strategy and Action Plan for conservation and sustainable use of biodiversity and bio-resources

Section 36(1) of the Biologica l Diversity Act, 2002 stipulates that the Central Government should develop national strategies, pla ns and programmes for conservation, promotio n and sustainable use of biological diversity, including the following:

(a)Identification and monitoring of areas rich in biological resources

(b)Promotion of in-situ and ex-situ conservation

(c)Incentives for research, training, education to increase awareness about biological diversity

Accordingly, a National Biolo gical Diversity Action Plan and Strategy has been developed by the Ministry of Environment and F orests, Government of India in 2008 with strate gies and action points to deal with a number of identified threats and constraints in a time-bound manner (on a long, medium and short term basis). It has also ide ntified co-ordination and associated agencies for implementation of these action points. The identified threats and constraints involve the following:

1.Strengthening and integr ating in-situ, on farm and ex-situ conservation;

2.Augmentation of natural resources base and its sustainable utilization; e nsuring inter- and intra-generational equity;

3.Regulating introduction and management of invasive alien species;

4.Assessment of vulnerabi lity and adaptation to climate change and deserti fication;

5.Integration of biodiversity concerns in economic and social development;

6.Impact of pollution;

7.Development and integration of biodiversity database;

8.Strengthening implemen tation of policy, legislative and administrative measures for biodiversity conservation and management;

9.Developing national c apacities for biodiversity conservation and appropriate use of new technologies;

10.Use of economic instrum ents/valuation in biodiversity related decision making processes;

11.International co-operation.

The formulation of the Action Plan and Strategy was a participatory and consult ative process resulting in the development of a technical r eport, “Securing India’s Future a technical report on Biodiversity Strategy and Action Plan” (TPCG & K alpavriksh, 2005). This comprehensive report w as prepared after many rounds of public consultation and the participation of various stakeholders. It identified major gaps in the existing administrative, policy a nd legal framework on biodiversity conservation and sustainable use, and recommended 101 strategies and 345 actions under following major heads:

Overall planning and governance: 2 Strategies, 2 Actions

Wild biodiversity: 65 St rategies, 250 Actions

Domesticated biodiversity: 34 Strategies, 89 Actions

Links between wild and domesticated biodiversity: 4 Actions

5.2.Documentation of People’s Knowledge of Biodiversity

One of the most significant provisions of the Biological Diversity Act and the R ules framed thereunder is the requirement of registration of local people’s knowledge of biodiversity, thr ough measures including the sui generis system (section 36(5)).

In addition, the Act provides tha t the Biodiversity Management Committee shal l be constituted for, inter alia, chronicling knowledge rela ted to biological diversity including knowledge r elated to landraces which is the primitive cultivar that was grown by ancient farmers and their successor s; folk varieties meaning cultivated varieties of plants th at are developed, grown and exchanged inform ally among farmers; and cultivars which are varieties of plants that have originated and been specifically bred for the purpose of cultivation, domesticated stocks and breeds of animals and micro-organisms (sect ion 41(1)).

The Protection of Plant Variety and Farmers Right Act, 2001 has also recognise d the right of the farmers to register varieties including farmers’ variety which has been defined as variety that (i) has been traditionally cultivated and evol ved by the farmers in their fields; or (ii) is a wild relative or land race or a variety about which the farmers possess the common knowledge.

5.3. Sustainable use of components of biodiversity

The Biological Diversity Act and the Rules framed thereunder provide for sustainable use of the components of biodiversity. This calls for their use in a manner which will not lead to the long-term decline of biological diversity 10 . In this regard, the National Biodiversity Authority and the State Biodiversity Boards have the power to revoke access applications and prohibit or restrict access to biological resources (section 3 a nd 7 of the Act respectively).

5.4 Biodiversity inclusive E nvironmental Impact Assessment

The Biological Diversity Act mandates the Central Government to take measures to undertake the assessment of environmental i mpacts of those projects which are likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and, where appropriate, provide for public participation in such assessment (section 36(4)(i)). The section is in compliance with Article 14 of the CBD.

While there are no specific measures taken for such an assessment, a proje ct proponent under the Environmental Impact Assessment Notification 2006 (issued under the Enviro nment (Protection) Act, 1986) has to provide informati on pertaining to biodiversity of the prospective site while applying for environmental clearance. This in cludes information with respect to environmenta l sensitivity (Form IA of the Notification). The appropri ate body has to appraise this information while granting environmental clearance.

5.5. Biosafety [For more information, please refer to the unit on Biosafety in the Environmental Law module.]

5.5.1. National framework

Another mandate that the Biolo gical Diversity Act specifies with respect to consservation and sustainable use of biological diversity is to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology likely to have adverse im pact on the conservation and sustainable use of biologi cal diversity and human health (section 36(4) (ii)). In this regard, the Ministry of Environment and Forests has notified the Rules for The Manufact ure, Use, Import, Export and Storage of Hazardous Micro Organisms Genetically Engineered Organisms or Cells, 1989, under the Environment (Protection) Act, 1986. The Rules regulate the following:

(a) Manufacture, impor t and storage of micro-organisms and gene-techn ological products;

(b) Genetically engine ered organisms, micro-organisms and cells and any substances and products and food stuffs, etc. of which such cells, organisms or tissue s;

(c) Sale, offers for sal e, storage for the purpose of sale, offers and any kind of handling of genetically engineered organisms or cells with or without a consideration;

(d) Export and import of genetically engineered organisms or cells;

(e) Production, manuf acturing, processing, storage, import, drawin g off, packaging and repacking of genetically engineered products;

(f) Production, manufa cture etc. of drugs, pharmaceuticals, food stuffs, distilleries and tanneries, etc. which make use of genetically engineered micro-organisms one way or the other (rule 2).

The Rules have created six institutional bodies, namely,

i. Recombinant DNA Advisory Committee under the Department of Biotechnology;

ii. Review Committee on G enetic Manipulation under the Department of Biotechnology;

iii. Institutional Biosafety Committee constituted by person or institutio ns handling genetically engineered organisms;

iv. Genetic Engineering Appraisal Committee under the Ministry of Environment and Forests;

v. State Biotechnology Co- ordination Committee;

vi. District Level Committee.

The Rules provide that the main regulatory body is the Genetic Engineering Appr aisal Committee without whose approval no persons shall:

(a) Import, export, transpo rt, manufacture, process, use or sell any hazardous microorganisms or genetically engineered o rganisms/substances or cells including release o f genetically engineered organisms and products into the environment for any purposes including experiment and field trials.

(b) Produce, sell, import or use any substance or product containing genetically engineered organisms and cells;

(c) Produce, sell, import o r use food stuffs, ingredients in food stuffs and additives including processing and containi ng or consisting of genetically engineered organisms or cells (rules 7, 8,10 and 11).

One of the issues in this regard is the fact that in practice, the GEAC is only responsible for appraisal and it is not the body granting the approval.

5.5.2. International framework

The Cartagena Protocol on Biosafety adopted by States under the Convention on Biological Diversity applies to the trans-boundary movement, transit, handling and use of all living modified organisms (LMO) that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

The Protocol establishes the procedure for import and export of LMOs from one country to another. There are two sets of procedures: one for direct introduction of LMO into the environment, and another for direct use of LMOs for fo od or feed, or for processing of food and feed. The procedures are as follows:

(a) In case of direct introdu ction of LMO – an Advanced Informed Agreem ent is required, wherein the country intending t o export the LMO must notify the party importing the LMO about the intended export. The notification given by the exporting party shall be acknowledged within 90 days and a decision as to whether to allow the import or not shall be c ommunicated within 270 days.

(b) In case of direct use of LMO – Decision as to whether to approve and allow LMO – Food or Feed or for Processing (FFP) on the market of the importing country nee ds to be made available through a Biosafety Cle aring House.

6. Summary

The Biological Diversity Act stipulates that the Central and State Governments h ave to take measures for conservation and sustainable use of biodiversity. Efforts for in situ conservation have been undertaken by India under the primary legislation, the Wildlife Protection Act, 1972. Other way s of conservation like ex situ conservation are not sufficiently covered under any of the legislation. T he National Biodiversity Strategy and Action Plan lays down several actions plan conservation of biodiversity and its sustainable use. The specific areas that are of biodiversity concern like development projects and genetically modified organisms are also dealt with in the Biological Diversity Act, 2002 an d under the Environment (Protection) Act, 1986.

you can view video on Biodiversity Law

Weblinks:-

•Convention on the Biolo gical Diversity: https://www.cbd.int/

•Community Protocols: h ttp://www.community-protocols.org/

•Jonas H, et al. ‘Human Rights Standards for Conservation.” IIED, 2014 o n URL http://www.iied.org/hum an-rights-standards-for-conservation-rights-resp onsibilities-redress

•Gadgil M et al. “Ecolog y for the People: A Methodology Manual for People’s Biodiversity

•India’s National Reports to CBD:http://nbaindia.org/conte nt/500/55/1/biodiversityrelatedi.html

•National Biodiversity A ction Plan: http://nbaindia.org/uploaded/Biodiversityindia/NBAP.pdf

•Important links provided by National Biodiversity Authority: http://nbaindia.org/conte nt/96/39/1/links.html