Benefit Sharing from Flowering Bulb - Is It Still Possible?

Benefit Sharing from Flowering Bulb - is it still Possible?

J.H. Coetzee Agricultural Research Council P/Bag X1, Elsenburg, 7607 South Africa [email protected]

Keywords: benefit sharing, genetic resources, indigenous bulbous plants, Southern Africa

Abstract Genetic material from Africa, but more specifically from Southern Africa, was used to develop a large number of the world's most popular cut flowers and other ornamental plants. The most well known bulbous plants originating from genetic material from Southern Africa are Agapanthus, Amaryllis, Begonia, Clivia, Freesia, Gladiolus, Ixia, Nerine, Ornithogalum, Sandersonia, Watsonia and Zantedeschia. Two of the ten best sellers on the Dutch flower auctions in 1999 were originally developed out of genetic material from South Africa namely Gerbera and Freesia. A total of $ 143 million was earned from the sale of these two products on the Dutch auctions. A general statement can be made that the Netherlands earns more from South African flowers than South Africa earns from its gold. Does a mechanism exist whereby African countries can share in the profits from indigenous genetic material? Is the concept of benefit sharing viable for ornamental bulbous plants? According to the clauses of the Convention on Bio-diversity (CBD) it is theoretically possible, but in practice it is fraught with difficulties. The main reason why benefit sharing is not an option is that all the best bulbous genetic material has, for centuries been in the public domain. The original custodians of the genetic material cannot claim ownership according to the international treaties. Benefit sharing in the form of intellectual property rights is only possible if genetic material is improved to cultivar level through breeding and selection. In most African countries the necessary expertise and research funds do not exist to develop cultivars on which plant breeder's rights or patents can be registered. The only realistic option for benefit sharing is to go into agreements with international organizations. An alternative is to promote cultivation of indigenous bulbs that can be exported as cut flowers or bulbs from the country of origin. This humble approach gives the lawful owners a small share in the financial benefit.

INTRODUCTION The statement that "genetic resources are a heritage of mankind and consequently should be available without restriction" caused intense debates in the late eighties between industrial and developing countries. These debates eventually gave rise to the Convention of Biological Diversity (CBD) treaty. This treaty and other related agreements has a direct influence on the commercialization of genetic material. It is necessary that all roleplayers involved with the commercialization of indigenous genetic material are aware of the extent and implications of the CBD treaty. Bioprospectors should be aware of not infringing the provisions of the CBD treaty. It is also important that scientists working with indigenous knowledge systems and material implement the provisions of the CBD treaty in practice. In the past, bioprospecting of plant material from foreign countries was morally acceptable. Part of the exploration travelers' mandate was to collect genetic material and to transport it back to Europe where it was deposited in botanical collections. In these collections, the plant material was evaluated and those with an economic potential were commercialized. The first known record of a bulbous plant collected in South Africa is Morea which was collected in the 16th century as a food source. According to Bryan

Proc. 8th Int. Symp. on Flowerbulbs Eds. G. Littlejohn et al. 21 Acta Hort. 570, ISHS 2002 (1989) this plant was brought into the United Kingdom in 1587, from the Cape Floral Kingdom. It was however in the 17th century when the southern tip of Africa was under Dutch rule, that botanists such as Hartman and Oldenland collected bulbous plants. In the 18th century, gardeners such as Johan Andreas Auge and botanists such as Carl Peter Thunberg made large collections from the genetic material of the Flora capensis and sent it to Europe (Lighton 1960). The Scotsman Francis Masson, under the auspices of Kew Gardens collected bulbous plants such as Gladiolus, Freesias, Ixias, Lachenalias, Zanthedeschia and Ornithogalum. These collections formed the basis of horticultural enterprise development from South African plants (Bryan 1989). The Cape Floral Kingdom consists of the mediterranean type and fire-climax vegetation type. Six subtypes include mountain fynbos, renosterveld, succulent karoo, nama karoo, thicket biome and afromontane forest. (Low & Rebelo, 1996). Commercial use of plants from the Cape Floral Kingdom includes food crops, beverages, medicinal plants, herbal remedies, crafts, thatching, tourism and ornamental plants. At present the most successful bulbous plant developed from the genetic material of the Flora Capensis is Freesia. In 1999, nearly 132 million stems were sold on the Dutch flower Auctions alone with a turnover of about US $ 55 million, and was in the 7th position of the top sellers on the flower markets. The commercial freesias of today originated from two of the genetic pool of 11 species endemic to the Cape Floral Kingdom. Unfortunately this multi million dollar commercialization has no financial benefit for South Africa, and if flower producers in South Africa want to cultivate the commercial freesia cultivars, royalties must be paid to international companies. Another South African bulbous plant from the Cape Floral Kingdom with an interesting history is Ornithogalum thyrsoides. It was the first fresh cut flower exported from South Africa by ship to the United Kingdom as early as 1880 (Lighton 1960). The inflorescences were collected in their natural habitat, but possibly through the harvesting techniques, viruses were spread and the quality of the flowers declined. This practice of wild harvesting was ceased, and although Ornithogalum is still regarded as a popular cut flower, all cultivation today occurs outside its natural habitat.

INTERNATIONAL TREATIES INFLUENCING THE COMMERCIALIZATION OF GENETIC MATERIAL In 1983 the members of the Food and Agriculture Organization (FAO) adopted the International Understanding (IU) on Plant Genetic Resources. The objective was to conserve and explore plant genetic resources of economic and/or social interest. Article 5 of the IU referred to the "universally accepted principle" that genetic resources are a heritage of mankind and consequently should be available without restriction. In 1987, at the Governing Council of the United Nations Economic Programme (UNEP), the USA proposed an all-inclusive treaty on the conservation of biodiversity. This treaty was not acceptable to countries rich in biodiversity. At the 1989 UNEP meeting the majority of countries were prepared to support the biodiversity treaty only if their sovereign right and benefit sharing in commercial exploitation is recognized (McConnell 1996). These negotiations lead to the Convention of Biological Diversity (CBD) treaty compiled in 1992 (Rio de Janeiro). The CBD treaty covered components of biodiversity conservation, sustainable use, and benefit sharing. According to CBD, access to genetic material for bioprospecting and commercialization shall be subject to two legally binding agreements:

Prior Informed Consent (PIC) PIC is covered in Article 15(5) of the CBD, although PIC has not been defined in the CBD. Ten Kate & Laird (1999) give the following definition: § Prior - before access takes place § Informed - based on truthful information about the use of the genetic resources, adequate for the authority to understand the implications § Consent - the explicit consent of the government (and possibly other stakeholders,

22 according to national law) of the country providing genetic resources. However, the implementation of PIC is a complicated concept and the implementation varies between countries. In order to obtain PIC for the collection of genetic material, legislation of the country needs to be adhered to. Unfortunately most of the developing countries do not yet have this relevant legislation in place. PIC from local and indigenous communities is an aspect not totally clarified by the CBD. Although the CBD acknowledges the rights of communities with regard to traditional practices and the knowledge and innovations connected with genetic resources and their derivatives, uncertainty still exists on how to protect these rights. Problems around PIC of communities are impeded as it is often difficult to determine who the rightful owners are, as different individuals or communities can lay claim on specific Indigenous Knowledge Systems. According to Ten Kate and Laird (1999) the challenge for the collector lies in the identification of exactly whose consent is required.

Material Transfer Agreement (MTA) The CBD states that access to genetic material must be subject to mutually agreed terms. The Material Transfer Agreement (MTA) spell out the legal aspects by which the material is obtained and determines if the genetic material is only to be used for scientific purposes and/or if the material may be commercialized (Erbisch and Fischer, 1998). If permission is obtained for commercialization in the MTA, the regulations with regard to benefit sharing are also clarified in the agreement.

Benefit-Sharing Due to the strong opposition against bio-piracy by the biodiversity-rich countries, the concept of benefit sharing is fully described in the CBD. However, benefit-sharing is a complex issue, the following types of benefits can be distinguished (Rosenthal, 1997): · Royalties derived from Plant Breeders Rights (PBR) or patents, · Advance monetary payments for the right to develop genetic material, · Equipment, training and infrastructure provided to the source country by the commercial partners, · Bioprospecting partnerships may conduct research on understudied research priorities in the source country, i.e. biodiversity concerns. Although benefit sharing is covered in the CBD treaty, benefit-sharing models should also comply with the regulations of the World Trade Organization’s (WTO) trade related aspects of Intellectual Property Rights (TRIP’s). Existing legislation in individual countries, with regard to plant breeder’s right, trade marks, intellectual property laws and patent laws also influences benefit-sharing. Important to note is that Article 19 of the CBD does not make provision for genetic material already in the public domain (Barton, 1998). If the genetic material or know-how/technology is already removed or known, it is not necessary for bioprospectors to share the benefit with the original owners.

SOUTH AFRICAN MODELS OF BENEFIT-SHARING The only protection, regarding bioprospecting in South Africa, is the CBD treaty signed in 1993 and ratified in November 1995. The Department of Arts, Culture, Science, and Technology (DACST) is currently preparing a Bill for Parliament to protect indigenous knowledge systems. In 1997 the South African Parliament accepted the White Paper on the conservation and sustainable use of South Africa’s biological diversity (Government Gazette 18163. Notice 1095. P21.1997), describing the policy of the government. The policy determines that “benefit arising from the use and development of South Africa’s biological resources will be fairly and equitably shared. The rights to use biological resources will be equitably allocated, and will recognize: a) that it may be necessary to limit access in order to ensure conservation and sustainable use, b) that within the constraints of sustainable use, the socio-economic upliftment of

23 disadvantaged communities is an important criterion upon which decisions will be based, c) that where people’s historical rights of access to natural resources have been removed or constrained this should be reviewed and redressed in line with the other guiding principles and d) The Constitutional rights of owners of biological resources.” The political injustices of South Africa’s past gave rise to the development of first and third world elements. A similar conflict situation exists between the nations of the Northern and Southern Hemispheres, complexing benefit sharing even further (Wolson, 1998). Legislation in South Africa enables a juridical person to benefit from the development of improved genetic material. Such material can be registered as a cultivar with PBR and/or a patent as it complies with the requirements determined relating to novelty, utility, and non-obviousness. However, legislation does not provide protection for IKS and as pointed out by King & Eyzaguirre (1999), PBR is totally incompatible with IKS. The reason being IKS does not comply with the patent requirements of novelty, it (IKS) is a collective possession, and knowledge, per definition, is public property. Controlled access to genetic resources and benefit sharing (ABS), as part of the national policy on biodiversity was considered to provide a good example of participation in policy making, resulting in the White Paper on Biodiversity. Three years after publication of the White Paper, there is still no action plan to implement the policy (Wynberg and Swiderska, 2000) and therefore no legal guidelines over bioprospecting are available. Wynberg and Swiderska (2000) are of the opinion that "consultation fatigue" has developed between the role players, but they also admit that under circumstances where trust is poor or lacking, as is the case in South Africa, a high level of consultation is required. Guidelines from government, regarding bioprospecting are needed. In the absence of official legislation with regard to the handling of genetic material developed commercially, the following model has been developed.

AGRICULTURE RESEARCH COUNCIL (ARC)-MODEL The ARC-Model was developed to commercialize products with an existing or potential market and already in the public domain. Disenfranchised communities, who are involved in the utilization and conservation of these products, are incorporated in the commercialization process. The commercialization process includes the following phases: Phase I Collection and Improvement: Identification and collection of genetic material with commercial value. The gene bank collection is then used for selection and breeding of new improved cultivars, which are easily distinguished. Phase II Pilot Evaluation: Pilot studies are undertaken to develop the necessary cultivation practices and to determine the economic viability. Phase III PBR/Patents: Data derived from the pilot studies determines the registration of PBR and Patents on the cultivar, on a national and international level. Phase IV Commercialization: Identify entrepreneurs to cultivate the cultivars – special attention is given to individuals who were historically involved in harvesting the material from the natural environment. The necessary plant material and technology is supplied to entrepreneurs in rural areas. Phase V Market links: A process will be initialized to establish a relationship between the entrepreneur and the formal business sector. Financially, South Africa consists of a strong first world component as well as to a large third world component. This poses the potential problem that developing producers may never share in the benefit opportunities. To address this problem, cultivation contracts between Sustainable Rural Livelihood and agribusiness’s is

24 proposed .Buy this concept of produce of origin is promoted. Phase VI Trademark: To be allowed to cultivate a registered cultivar, an agreement with producers is needed. This agreement determines that a levy be placed on the final product and marketed under a registered trademark. By using the existing PBR and trademark legislation, a mechanism is developed whereby income generated can be applied for sustainable funding research and development work. The cultivars could be made available to foreign institutions under the same conditions. This model has strengths and weaknesses, but offers a mechanism to ensure that through production, benefit sharing reaches the original owners of the genetic material directly. The ARC-Model is extended to include natural products such as indigenous phytomedicinal plants. The advantages are: § Expertise and infrastructure is initiated through the process of commercialization in the country of origin. § Through cultivation, benefit to the disenfranchised communities can be guaranteed. § The country of origin receives the largest benefit While the disadvantages are: § Large capital investment is required. § Complicated control of royalties § High risk of developing a cultivar with no market potential § The development of suitable cultivars is a tedious process

BENEFIT SHARING FROM CULTIVATION By cultivation of indigenous bulbs in South Africa, attempt are made to let inhabitants of the region share in the commercial advantage developed from the Cape Floral Kingdom. In especially rural areas where a high percentage of unemployment occurs, the ARC in collaboration with the private sector has initiated a course to train the local inhabitants to produce bulbs through cultivation. At a mission station such as Pella, unemployed people, mostly women were trained in bulb production. The entrepreneurs are supplied with a range of bulblets which are cultivated for one season before being harvested and marketed on the international market. In Nieuwoudtville, small scale farmers produce Lachenalia cultivars developed by the ARC. In the informal urban settlement Khyalitsha, Zanthedeschia cut flowers are cultivated on a semi-commercial scale. These actions are attempts to create employment, but also make the inhabitants aware of the value of indigenous genetic material. It also contributes positively to nature conservation as the value of the environment is more appreviated.

CONCLUSION Despite all the discussions with regard to genetic material, there is actually little advantage where the "legal inhabitants" share in the benefit sharing originating from ornamental plant material. The main reason for this is that most of the genetic material of especially bulbous plants was removed from its origin centuries ago and is today in the public domain. Only through expensive breeding programs, can cultivars be developed which will make benefit sharing possible. The skills and financial means of developing countries are limited compared to developed countries with regard to generating products from the biodiversity of plant material. There are still a large number of bulbous plants in Southern Africa, which can be commercialized. Not only in the field of ornamental plants for the cut flower and pot plant industry, but also in the field of the pharmaceutics industry. South Africa contains 10% of the plant species in the world, yet very few South African plants are used in the production of prescription drugs. The reason for this may be

25 two-fold. Firstly it is very expensive, in South African monetary terms, to have plant derived drugs tested and registered by the Food and Drug Association of the United States and in Europe. The second reason may be due to the fast exploration of possible drug use of African plants. It is common knowledge that many plants, indigenous to Africa, have medicinal properties, but experimental works needs to be done. For centuries traditional healers and herbalists have been treating people with indigenous plants. Consulting with them will reduce screening time for commercialization. Only when fair benefit-sharing occurs, will traditional healers and herbalists be willing to share their wealth of indigenous knowledge with fellow Africans and the rest of the world. The mistakes from the past should be avoided and it should be ensured that the original and legal owners of the indigenous plant material will share in the benefit of developed products.

ACKNOWLEDGEMENTS § Michigan State University, Institute of International Agriculture where the author attended a course in Intellectual Property Rights and Technology Transfer in July 1999. § First Commonwealth Science Forum - access, bio prospecting, DNA- fingerprinting, IPR and benefit sharing and the Commonwealth, September 1999 in Goa, India, where the author participated in the discussion document. § USAID

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26 Wynberg, R.S. and Swiderska, K. 2000. Prepared Case Study for the IIED Project on “Participation in Policies on Access to Genetic Resources and Traditional Knowledge.”