Access and Benefit Sharing and the
Nagoya Protocol
Nashina Shariff
Manager
Environmental Stewardship Branch
November 2014
Objectives of presentation and discussion
• Provide background on:
• Access and Benefit Sharing
• The Convention on Biological Diversity
• The Nagoya Protocol
• Introduce the federal discussion document on Access and Benefit
Sharing
• Obtain your feedback on the proposed approach
Note: The following slides have been included to facilitate
understanding of the Nagoya Protocol. This is not a legal analysis or
interpretation of the Nagoya Protocol.
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Background: The Convention on Biological
Diversity
• United Nations Convention on Biological Diversity came into force in
1992
• The Convention has three formal objectives
1. Conservation of biological diversity
2. Sustainable use of its components
3. Fair and equitable sharing of benefits arising out of utilization of
genetic resources
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Background: The Nagoya Protocol
• The Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilization was
adopted by the Conference of the Parties to the Convention on
Biological Diversity in 2010
• Addresses the third objective of the Convention on Biological
Diversity
• Over 50 Parties to the CBD have ratified the Protocol. It entered into
force on October 12, 2014
• The first meeting of the Conference of the Parties serving as the
Meeting of the Parties to the Protocol was held October 13-17, 2014
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Background: Status of the Nagoya Protocol in
Canada
• Canada is a Party to the Convention on Biological Diversity, but has
not yet made a decision on how it will respond to the Protocol
• The Government has discussed ABS concepts with Aboriginal
groups, provinces and territories and other stakeholders since 2004
• Environment Canada engaged broadly in 2011 on whether Canada
should formally support the Nagoya Protocol (referred to as
signature)
• At that time, the Government decided that additional analysis and
engagement regarding the potential implications of the Protocol for
Canada was needed before deciding how to respond
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Development of Domestic Policy
• Environment Canada has outlined a potential federal approach to
access and benefit sharing to serve as the basis for further
discussion with Provinces and Territories, Aboriginal groups and key
stakeholders
• It is not a comprehensive plan to implement the Nagoya Protocol,
simply a tool to enable discussion
• Environment Canada is engaging with Provinces, Territories,
Aboriginal communities, industry and research groups throughout
the summer and fall of 2014
• We are interested in hearing your views
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Access and Benefit Sharing: Overview
• Genetic resources (GRs) are defined as any material of plant,
animal, microbial or other origin containing functional units of
heredity of actual or potential value.
• The utilization of genetic resources includes research and
development on the genetic and/or biochemical composition of
genetic resources, including through the application of
biotechnology
• This includes scientific research and commercial use
• Access and Benefit Sharing (ABS) is the fair and equitable
sharing of the benefits arising from access to and utilization of
genetic resources and associated traditional knowledge
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Access and Benefit Sharing: Overview
• Access and benefit sharing (ABS) creates a system where those
who access and use genetic resources - the users - enter into an
agreement or arrangement with those who provide the resources the providers - that allows providers to control access (if desired)
and to receive a share of the benefits derived from the use of the
genetic resources (if desired)
• Providers grant permission to access the genetic resources they
control, and can impose conditions on sharing the benefits from that
access
• Users can be diverse, from research institutions to cosmetic industries,
who seek genetic resources or associated traditional knowledge to
further their work
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Access and Benefit Sharing: Benefits
• Non-monetary benefits may include technology transfer or sharing
of research and development results
• Monetary benefits may include licensing fees or payment of
royalties, and are often the result of research focused on
commercialization
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Access and Benefit Sharing: Traditional
Knowledge
• Use of traditional knowledge associated with genetic resources may
help users expedite their research and development efforts or offer
insight into conservation activities
• Access and benefit sharing allows for the benefits arising from the
use of traditional knowledge associated with genetic resources to be
shared with the holders of that knowledge
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Nagoya Protocol: Roles and Responsibilities
• Different entities may be made responsible for providing Prior
Informed Consent depending on the type and location of the genetic
resources being accessed
• These are referred to as Competent National Authorities. and could
include federal departments and agencies, Provinces, Territories and
Aboriginal communities
• Canada would need to establish a National Focal Point to:
• Inform potential users of genetic resources and associated Traditional
Knowledge on ABS requirements across Canada, as well as provide
information on Competent National Authorities.
• Liaise with the International Clearing House
• Canada would also need to take measures to provide that genetic
resources that are acquired in other countries and being utilized in
Canada are accessed according to the other country’s laws
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Nagoya Protocol: Countries’ Responsibilities
Under the Protocol, countries will,
• as appropriate, aim to ensure that indigenous and local communities
provide prior informed consent or approve of and are involved in,
decisions regarding access to genetic resources on land to which
they have an established right to grant access
• aim to ensure that indigenous communities provide prior informed
consent or approve of and are involved in, decisions regarding
access to traditional knowledge associated with genetic resources
which they hold
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Nagoya Protocol: Implications for Users
• In a jurisdiction that has measures regarding access to genetic
resources in place, a user (researcher, company, etc.) wanting to
access genetic resources for the purposes of performing research
and development on the genetic or biochemical composition of the
genetic resource would need to:
1.
2.
3.
Gain permission to access the genetic resources
Enter into a contract for the use of the genetic resource, where the
provider requires such an arrangement (i.e., negotiate Mutually
Agreed Terms)
Abide by the conditions in the mutually agreed terms when using the
genetic resource
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Nagoya Protocol: Scope
• Covers genetic resources located in situ and ex situ
• In-situ means genetic resources located within ecosystems and natural
habitats
• Ex-situ means the conservation of components of biological diversity
outside their natural habitats. (e.g. herbaria, seed collections,
universities)
• Canada is of the view that the Protocol will not be applied
retroactively
• Only genetic resources acquired from in situ sources after the Protocol
is in force are covered
• The Protocol does not apply to non-Parties
• In particular, does not cover American genetic resources because the
U.S. is not a Party to the Convention on Biological Diversity
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Discussion Document
• The discussion document focuses on federal genetic resources
• Situated on federal lands and waters, or those within federal
jurisdiction
• Issue Prior Informed Consent for access to, and establish mutually
agreed terms for, the use of federal genetic resources
• To the extent possible, rely on existing licensing, permitting and other
policies
• Mutually Agreed Terms will be limited to non-monetary benefits for now
• Canada may choose to not require Prior Informed Consent for some
genetic resources under federal authority
• If Canada decides to implement a federal policy, it likely would take
up to a few years before it would be fully in place
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Discussion Document: Federal Roles
• Relevant Federal departments and agencies will be Competent
National Authorities for federal genetic resources
• Grant access to genetic resources for which they are responsible
through issuing permit or evidence
• Advise on applicable procedures for Prior Informed Consent and
Mutually Agreed Terms
• National Focal Point for Canada
• Provide information to genetic resource users on Prior Informed
Consent and Mutually Agreed Terms policies across Canada
• Provide general model templates for Prior Informed Consent and
Mutually Agreed Terms
• Environment Canada may take on this role
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Discussion Document: Aboriginal
Communities
• Engaging with Aboriginal communities to determine:
• The level of interest in developing ABS policy
• How to support Aboriginal communities in:
• Providing access to genetic resources to which they have an established
right to grant access
• The development of policies related to Traditional Knowledge associated
with genetic resources
• Help Aboriginal communities put in place ABS systems by:
• Raising awareness and building capacity
• Developing model templates for mutually agreed terms
• Providing examples of ABS systems applied by other indigenous
groups
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Discussion Document: Accessing Foreign
Genetic Resources
For use by Canadians of genetic resources accessed in another
country:
1. May use the Wild Animal and Plant Protection and Regulation of
International and Interprovincial Trade Act (WAPPRIITA) to control
use of foreign wild genetic resources
• WAPPRIITA prohibits the import of illegally possessed, transported or
distributed wild plants and animals
• Interpret “illegal” to include ABS laws in the country of origin
2. Promote voluntary best practices to address uses of
• genetic resources that are not “wild”
• traditional knowledge associated with genetic resources
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Next Steps
• Consider the comments from Aboriginal groups, provinces and
territories and stakeholders
• Provide advice on the further development of domestic ABS policy
and next steps regarding a response to the Nagoya Protocol in the
fall
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