Abstracts

Globalization

Panel 2: ABS: Addressing the livelihood concerns of the farming communities?

• The Right to Access and Benefit Sharing: Sharing the Indian Approach with Bangladesh and Pakistan
• Changing Livelihoods: The Burden of Pastoralists Shifting to Agriculture
• Access & Benefit Sharing (ABS) and Livelihood of Farmers
• Patent, PVP and Community Rights: Policy Issues for South Asia

The Right to Access and Benefit Sharing: Sharing the Indian Approach with Bangladesh and Pakistan

by Indra Nath Mukherji* and Namrata Pathak**

All South Asian countries, except Bhutan (at this point in the process of acceding), are members of the World Trade Organization. They are also members of the Convention on Biological Diversity (CBD) that provides for Access and Benefit Sharing (ABS) of the use of a country’s genetic resources. The TRIPS Agreement requires a review of article 27.3(b) which deals with the patentability of plant and animal inventions and protection of plant varieties. The above article does not specifically provide for protection of traditional knowledge (TK), nor does it require prior informed consent (PIC) for the use of genetic resources and associated TK. Para 19 of the Doha Declaration has broadened the discussion by including the relationship between the TRIPS Agreement and UN Convention on Biological Diversity, the protection of TK and Folklore. Review of this article began in 1999 as required by the TRIPS Agreement. Many developing countries (including both India and Pakistan) have made submissions to the TRIPS Council on a checklist of issues on the relationship between the TRIPS Agreement and the CBD.

The objectives of this study include:

1. A review of ABS at the global level
2. Review of Indian legislation on plant varieties and biological diversity
3. Examine similar attempts in Bangladesh and Pakistan
4. Examine if the Indian legislation and its operation could provide a model for other countries in the region (particularly for Bangladesh and Pakistan)

Legislation on protection of plant varieties and ABS therein is yet at a draft stage and expected to get a final shape soon in Bangladesh. In Pakistan, the legislation based on an Ordinance is focused on plant breeders and not related in any way to ABS or farmers’ rights. Its Seeds Act is past dated. By contrast, the Indian legislation balances the rights of both farmers and breeders; and also provides for ABS. It has been enacted and in force for some time. In terms of implementation, it has set up an authority in November 2005 and since June 2007 has started receiving applications for receiving seed samples of 12 crops for testing for their distinctiveness, uniformity and stability. It is hoped that the Indian legislation and its limited operation could perhaps form a model for other countries in the region to share. The paper is expected to throw light on these issues.

The following primary data sources would be accessed for analysis:

Bangladesh

1. Biodiversity and Community Knowledge Protection Act of Bangladesh (Text proposed by the National committee on Plant Genetic Resources, 29 September 1998)
2. Plant Varieties Act of Bangladesh (Text proposed by the National Committee on Plant Genetic Resources, 29 September 1998)

India

1. Plant Varieties Protection and Farmers Rights, 2001
2. The Biological Diversity Act, 2002
3. Biological Diversity Rules, 2004

Pakistan

1. Plant Breeders’ Rights Ordinance, 2000
2. Seeds Act 1976

* Indra Nath Mukherji is Professor of South Asian Studies at Jawaharlal Nehru University, New Delhi. He has published one article in an edited book Indigeneity and Universality in Social Science (Sage 2004).
** Namrata Pathak is a Research Scholar in South Asian Studies Division, Jawaharlal Nehru University, working for a PhD on Protection of Traditional Knowledge: A Comparative Study of India and Bangladesh.

Changing Livelihoods: The Burden of Pastoralists Shifting to Agriculture

by R. Siva Prasad* and Alok Pandey**

In the developing and underdeveloped countries in the subcontinent, like India, Bangladesh and Pakistan, majority of the population rely on agricultural and allied activities. However, there are some pastoral and other tribal communities who are now left with no other alternative but to shift to agriculture or another way of life due to changes that have come about as a result of expanding economies and globalisation.

Adapting to any new occupation is not an easy task and this process of change has implications for the livelihoods of the dependent population, especially those belonging to the vulnerable sections, like the pastoralists, foragers, artisans, and others. The knowledge system, which has been the guiding force behind their livelihoods and ecological management earlier, goes completely out of gear with the newly acquired/ forced livelihood. This has serious consequences for the communities as well as the environment. Also, traditional agriculture practices are under threat due to many factors, such as the vagaries of monsoon, modern markets and globalisation. Therefore, marginal communities, like tribal and rural farmers, depending on nature directly for agriculture are more prone to shocks.

The process of adaptation is also quite tedious for these communities and enquiring into these would seem to be a productive effort. This paper makes an attempt to understand this process of transition from pastoralism to agriculture and lessons learnt. This exercise would be useful for those who are interested in reflecting on government policies and programs relating to communities in transition. This paper would try to bring out similar experiences, if any, in the countries belonging to the subcontinent for comparison and drawing inferences.

The specific objectives of the paper will be to:

• understand the people’s access to natural resources and the extent to which they are able to utilize them to strengthen their livelihoods
• understand the process of change from pastoralism to agriculture
• understand the influence of development programs that have promoted agriculture among the Toda
• analyse the different approaches made by the government to promote/demote their traditional livelihoods.

Expected findings of the paper include:

• The changes in traditional livelihoods have affected the culture, institutional frameworks and social arrangements of the Toda.
• The tribal situation after adopting agriculture as their livelihoods and the problems faced in pursuing agriculture by these communities is one of dependence and uncertainty affecting their food security.
• The new livelihoods are not in tune with their traditional knowledge systems. The lack of complete knowledge of the agricultural process has left the community in a state of stress.
• These changes in livelihood caused more harm to the community than the benefit that they have received.
• There is a need to incorporate traditional knowledge systems for better management of the natural resources to make their livelihoods sustainable.
• The experience of transition from pastoral to agriculture or for that matter from non-agriculture to agriculture exhibits a similar process and has similar policy implications.

The paper is based on an anthropological fieldwork carried out in the Nigliri Hills in the State of Tamil Nadu, India, amongst the Toda, a traditional pastoral tribe. The Toda are giving up their pastoral life and embracing agriculture due to many factors. Primary data is gathered through unstructured interviews, case studies, schedules and observation. The proposed paper will also rely on secondary data from official reports, documents and records, published and unpublished research reports and articles.

**Alok Pandey is a Research Scholar at the Department of Anthropology, University of Hyderabad, Andhra Pradesh, India.

Access & Benefit Sharing (ABS) and Livelihood of Farmers

by Keya Ghosh*

Traditional Knowledge (TK) plays a crucial role in the lives of local communities: it is a key element in their food security, health, education, natural resources management, and other vital activities. TK has also made a large contribution to modern agriculture and industry. Local communities are likely to benefit from the use of their TK by outsiders only if: a) the TK in question is not in the public domain and is not being used already; b) it has a commercial potential; and c) its commercial use takes place through a legal contract between the community and a user industry that has provisions for fair and equitable benefit sharing.

This paper presents a few case studies ( such as the Kani community of Kerala, the Beej Bachao Andolan and the Organic Cultivation of the Basmati Variety) to illustrate the importance of commercialization and benefit sharing in conservation of Traditional Knowledge and varieties. Through these case studies, the paper tries to show how commercialization of TK and ABS can have a positive impact on the livelihood of the farmer communities.

Then the paper goes on to highlight the difficulties that were faced during Benefit Sharing in the most well known case study in India, and factors, which directly influence the success of commercialization efforts, and its impact on the livelihood of farmers and local communities.

The last part of the paper highlights and analyzes the institutional mechanisms provided in the Indian PPVFR Act and Biological Diversity Act, 2002 for ensuring benefit sharing and how the funds raised through this benefit sharing can be channelized and utilized for sustainable development and conservation of agriculture and Traditional Knowledge.

In the process, a critical review of the two Indian Acts is presented with regard to Benefit Sharing.

* Dr. Keya Ghosh is an Advisor to the Consumer Unity and Trust Society (CUTS) International-Calcutta Resource Center, India.

Patent, PVP and Community Rights: Policy Issues for South Asia

by Kamalesh Adhikari*

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is the most controversial agreement of the World Trade Organization (WTO), mainly because of its provisions on patent and plant variety protection (PVP) contained in Article 27.3 (b). On this issue, even during the Uruguay Round of trade negotiations, the divide was clear and wide between the biodiversity-rich developing countries and the technology-rich developed countries. Many believe that had TRIPS itself not mandated for the review of this Article four years after the implementation of the Agreement, i.e., 1999, the consensus among Members to enforce it through the multilateral trading system would not have been possible.

The conflict between the developing and developed countries on this Article is mostly because of the positions they have taken on the issue of patent enforcement and PVP. Developing countries have taken up their positions based on ‘community-interest driven agenda’ whereas the developed countries put forward their positions based on ‘corporate-interest driven agenda’.

The community-interest driven agenda of the developing countries is directed to amend TRIPS in a manner that protects the rights of local, indigenous and farming communities. The corporate-interest driven agenda of the developed countries is focused on making TRIPS such a stringent global intellectual property right (IPR) regime, which promotes innovations by fulfilling the ‘legitimate interests’ of innovators such as scientists, breeders and multinational seed and pharmaceutical companies.

As a way out to balance the interests of both Members, there has been a growing realization that Article 27.3 (b) TRIPS should be amended reconciling it with the equity principles of the Convention on Biological Diversity (CBD), which aims at ensuring conservation of biological resources, their sustainable utilization and fair and equitable benefit sharing from the commercial use of the resources. However, developed countries still seem to reluctant to recognize the principles of CBD into the TRIPS Agreement and they argue that they need to be dealt separately.

It thus remains a matter of priority for governments of biodiversity-rich South Asian countries to:

• Develop and implement the legal and institutional mechanisms to realize the potential of biotechnology and the rights of local, indigenous and farming communities, both nationally and regionally;
• Establish a regional consensus on issues concerning patent and PVP, most importantly through the forum of South Asian Association for Regional Cooperation (SAARC); and
• Devise negotiation strategies to ensure that TRIPS and all international agreements on IPRs and biodiversity recognize the contributions of local, indigenous and farming communities in biodiversity conservation and enhancement.

Against this backdrop, this paper presents an analysis of issues concerning IPRs, ABS and community rights and highlights some policy issues that South Asian governments need to consider while dealing with the threats that are likely to affect the rights of local, indigenous and farming communities.

* The author is Program Coordinator at the South Asia Watch on Trade, Economics and Environment (SAWTEE), Kathmandu, Nepal.