A Critical Analysis of the Protection that South Africa’s Bioprospecting Legislation affords Indigenous Communities, in the context of the country’s International Obligations and with particular regard to Implementation Challenges By Renelle Lindy Moodley Submitted in partial fulfilment of the requirements for the degree of Master of Law, at the College of Law and Management Studies, University of KwaZulu- Natal, Durban Supervisor: Ms Melissa Lewis December 2013 Declaration I, Renelle Lindy Moodley, hereby declare that this dissertation is my own original work and that all sources have been accurately reported and acknowledged, and that this document has not previously in its entirety or in part been submitted at any University in order to obtain an academic qualification. …………………………. ………………………… Renelle Lindy Moodley Date ……………………….. ……………………….. Ms Melissa Lewis Date Supervisor ii Acknowledgements I extend my most grateful thanks and appreciation to my Supervisor, Ms Melissa Lewis, for her constant motivational support, her intellectual guidance and her positive assistance during both the preparation and completion of this dissertation. You have encouraged me to think critically and analytically and in so doing, you have enabled me to explore a world of knowledge. I am eternally grateful to my dear husband, Joshua, and our darling girls, Tiara and Tayley, for their never ending love, support and encouragement; and for being more delighted than I was when I finally completed this dissertation. Your enduring patience, understanding and faith in me have made this milestone possible. My greatest thanks to God, for His wisdom, knowledge and unfailing love. iii Dedication To my beautiful daughters, Tiara and Tayley. May you be inspired to reach for your dreams and always aspire to be the very best you can be. iv Abstract Indigenous communities have developed a wealth of knowledge, which plays a crucial role in providing leads for the use of genetic resources and bioprospecting. However, such knowledge is under increasing threat due to the misappropriation of the biological resources and associated traditional knowledge of indigenous communities, through both bioprospecting, as well as the inappropriate exercise of intellectual property rights. The internationally agreed Convention on Biological Diversity (CBD) attempts to provide a bulwark against biopiracy and although it assists indigenous communities to regain some control, the CBD has proven inadequate in the protection of the traditional knowledge of indigenous communities. The subsequent Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) attempts to address some of these limitations but unfortunately has its own shortcomings, as it was largely concluded on the basis of a compromise between developed and developing countries. This dissertation will undertake a critical analysis of the provisions of the CBD and Nagoya Protocol, with a view to establishing the level of protection these instruments afford indigenous communities. It will be shown that notwithstanding the drawbacks of both the CBD and Nagoya Protocol, they nevertheless represent major achievements in the journey to protect the genetic resources and associated traditional knowledge of indigenous communities. It is in this context that this dissertation will analyse South Africa’s Access and Benefit Sharing (ABS) regime in relation to the protection it affords indigenous communities and in the light of the implementation challenges that such legislation presents. A particular focus will be on whether South Africa’s ABS legislation complies with the country’s international obligations relating to the protection of indigenous communities and whether South Africa’s approach to the protection of the genetic resources and associated traditional knowledge of indigenous communities, in the context of bioprospecting, is adequate or whether there exists potential for its enhancement. v TABLE OF CONTENTS Declaration……………………………………………………………………………. ii Acknowledgements…………………………………………………………………… iii Dedication…………………………………………………………………………….. iv Abstract……………………………………………………………………………….. v Table of Contents……………………………………………………………………... vi List of Acronyms……………………………………………………………………… xiv 1. Chapter One : Introduction 1.1 The Importance of Traditional Knowledge……………………………………. 1 1.2 Biopiracy………………………………………………………………………. 2 1.3 Objectives of Dissertation……………………………………………………… 4 1.4 Structure of Dissertation……………………………………………………….. 6 2. Chapter Two : The International Response to Biopiracy and the Protection of the Genetic Resources and Associated Traditional Knowledge of Indigenous Communities 2.1 Introduction…………………………………………………………………. 8 2.2 Chapter Overview………………………………………………………….. 9 2.3 The Convention on Biological Diversity…………………………………… 9 2.3.1 State Sovereignty…………………………………………………………… 9 2.3.2 Access and Benefit Sharing………………………………………………… 10 2.3.3 Traditional Knowledge associated with Genetic Resources……………….. 10 2.4 The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization……………………… 11 vi 2.4.1 The Development of the Bonn Guidelines…………………………………... 11 2.4.2 Guidance concerning Indigenous Communities……………………………... 12 2.4.3 Drawbacks of the Bonn Guidelines…………………………………………... 13 2.5 The Road to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity…………………………………… 14 2.5.1 The Mandate to negotiate an International ABS Regime…………………….. 14 2.5.2 The Significance of Decision IX/12………………………………………….. 15 2.5.3 The Group of Technical and Legal Experts (GTLE) on Traditional Knowledge associated with Genetic Resources……………………………… 16 2.5.4 The Report of the meeting of the GTLE on Traditional Knowledge Associated with Genetic Resources…………………………………………. 17 2.5.5 The Meetings of the Working Group on ABS………………………………. 18 2.5.5.1 The Eighth Meeting of the Working Group on ABS……………………….. 18 2.5.5.2 The Ninth Meeting of the Working Group on ABS………………………… 18 2.5.5.3 The Co-Chairs Text…………………………………………………………. 19 2.5.5.4 The Negotiations leading to the Compromise Text…………………………. 21 2.5.5.5 The adoption of the Nagoya Protocol………………………………………. 21 2.6 A Critical Analysis of the Nagoya Protocol ………………………………. 22 2.6.1 Access to Genetic Resources and Associated Traditional Knowledge of Indigenous Communities……………………………………………………… 22 2.6.1.1 The meaning of the terms ‘prior informed consent’ and ‘approval and involvement’………………………………………………………………….. 23 2.6.1.2 The use of the term ‘in accordance with domestic law’………………………. 25 2.6.1.3 The meaning of ‘as appropriate’………………………………………………. 26 2.6.1.4 The mandatory nature of Articles 6.2 and 7………………………………….. 27 2.6.1.5 Final analysis of the provisions of Articles 6.2 and 7……………………… … 28 2.6.2 Benefit Sharing based on Mutually Agreed Terms……………………………. 29 vii 2.6.3 Reference to the United Declaration on the Rights of Indigenous Peoples…… 30 2.6.4 Derivatives of Genetic Resources……………………………………………… 31 2.6.5 Compliance Measures………………………………………………………….. 32 2.6.6 Monitoring Measures…………………………………………………………… 34 2.6.7 Designated Checkpoints……………………………………………………….. 35 2.6.8 Customary Laws and Community Protocols…………………………………… 38 2.6.9 Transboundary Co-operation…………………………………………………… 41 2.6.10 Global Multilateral Benefit Sharing Mechanism……………………………….. 42 2.6.11 Compliance Mechanism………………………………………………………… 43 2.6.12 Publicly Available Traditional Knowledge……………………………………. 45 2.7 Concluding Remarks…………………………………………………………… 47 3 Chapter Three : South Africa’s Approach to the Protection of the Genetic Resources and Associated Traditional Knowledge of Indigenous Communities in the context of Bioprospecting 3.1 Introduction……………………………………………………………...... 49 3.2 Chapter Overview…………………………………………………………. 50 3.3 South Africa’s Old Access and Benefit Sharing Regime………………….. 50 3.3.1 Lack of bioprospecting legislation…………………………………………. 50 3.3.2 South Africa’s bioprospecting legislation…………………………………... 51 3.3.3 Bioprospecting permits for initial research phase of bioprospecting……….. 52 3.3.4 The Problem with South Africa’s initial bioprospecting legislation………... 53 viii 3.4 A Critical Analysis of South Africa’s current Access and Benefit Sharing legislation, in relation to the protection it affords indigenous communities and in the light of the countries international obligations………………….. 54 3.4.1 The definition of ‘bioprospecting’ …………………………………………. 54 3.4.2 Genetic Resources and Derivatives…………………………………………. 55 3.4.3 Bioprospecting Permit Applications………………………………………… 56 3.4.4 Benefit-Sharing Agreements………………………………………………… 57 3.4.5 Traditional use of Genetic Resources………………………………………. 60 3.4.6 Bioprospecting Trust Fund………………………………………………….. 61 3.4.7 Compliance and Monitoring…………………………………………………. 63 3.4.7.1 Monitoring in User Countries…………………………………………………. 63 3.4.7.2 Patents Amendment Act No. 20 of 2005……………………………………… 63 3.4.8 South Africa’s role as a User Country…………………………………………. 64 3.4.9 Customary Law and Community Protocols……………………………………. 65 3.5 Concluding Remarks…………………………………………………………… 67 4. Chapter Four : Challenges in Implementing South Africa’s Access and Benefit Sharing Legislation in the context of Indigenous Communities 4.1 Introduction…………………………………………………………………… 68 4.2 Chapter Overview…………………………………………………………….. 68 4.3 Capacity Development……………………………………………………….