Leader Turned Laggard? Canada, the Nagoya Protocol, and the Road Ahead
As discussed elsewhere on this site, the Nagoya Protocol is a supplementary agreement to the Convention on Biological Diversity (CBD), which came into force in 2014. Its stated purpose is to help achieve the third goal of the CBD, namely the “[f]air and equitable sharing of benefits arising from the use of genetic resources.” Canada is a party to the CBD, and was instrumental in negotiating it, yet has neither signed nor ratified the Protocol. There are now 100 parties to the Protocol. Despite not being a party, the issue of ABS is not new in Canada. In 2004, before the Nagoya Protocol even existed, the Library of Parliament reported on a number of pressing policy concerns related to ABS that remain live in Canada to this day. Some examples include the limits in existing IP legislation to protect TK (see a recent blog post on the topic here), concerns over TK databases leading to exploitation, and the unauthorized copying of Indigenous works.
Earlier this year, the Ministry of Environment and Climate Change posted that while there is no single comprehensive ABS system in Canada, the federal government does have an interdepartmental committee looking at the issue, and that some current laws cover ABS elements at the federal/provincial/territorial levels. The department also points out that it is in consultation with a variety of stakeholders – including Indigenous groups – to address how to best implement a domestic ABS policy. This same language was used in 2014 in Canada’s Fifth National Report to the CBD. To Canada’s credit, there was a discussion paper this summer that called for the incorporation of TK into environmental regulations and decision making. But discussions and consultations cannot be an end in and of themselves; given the potential for biopiracy across Canada and the national goal of reconciliation with Indigenous peoples, Canada needs to seriously engage in the work of implementing ABS into domestic law, working alongside Indigenous communities who hold much of Canada’s bounty of genetic resources. There are several jurisdictions with similar geographic profiles and/or political structures moving ahead on ABS, and Canada would do well to follow their lead and learn from their example.
Norway, like Canada, is a rich and sparsely populated country, and was also the first industrialized country to ratify the Protocol in September 2013 (p 580). Norway is not only a user of genetic resources, but it has potential to be a provider as well with its diverse marine biology (the situation is similar in Canada). During the negotiations of the Protocol, Norway insisted that all countries have a common responsibility for sharing the costs of biodiversity conservation. It argued for a system that would allow a returning flow of benefits in compensation for the use of genetic resources from provider nations (p 588). Norway’s domestic legislation (specifically ss 57-60 Nature Diversity Act) directly address user-measure obligations in ABS. Importing genetic materials into Norway requires prior informed consent may take place only in accordance with such consent (p 590). There must also be disclosure of country of origin when dealing with patents. Norway also has sanctions for noncompliance if someone claims intellectual property without significantly modifying it, which goes even further than the text of the Protocol (p 590).
Australia is another useful template Canada may look to for insight as it works to implement the Nagoya Protocol. Australia is a Commonwealth country with a federal system of government, and like Canada also has a significant Indigenous population. Australia is a megadiverse country, with 7-10% of all species on earth living there. Australia signed the Protocol in 2012 but has not yet ratified it. The country has undergone consultations with diverse stakeholders to inform it of how to best implement the Protocol. For example, in its Fifth National Report to the CBD Australia noted its Indigenous Advisory Committee worked with the Threatened Species Scientific Committee to help incorporate Indigenous interests and perspectives into the research, as well as aiding listing recovery planning processes for threatened species. Queensland, Australia’s most naturally diverse state, has enacted the Biodiversity Act to prohibit bioprospecting activities on public land without a benefit sharing agreement in place (s 17). While Australia has not yet ratified the Protocol, it has shown considerable initiative and demonstrated that ratification of the Protocol is not a necessary precursor to better management and protection of genetic resources, and associated Indigenous traditional knowledge.
As the climate continues to change and genetic resources in remote areas like the arctic become more accessible, Canada’s will be under increasing pressure to mitigate biopiracy, conserve its biodiversity, and protect Indigenous traditional knowledge from commercial exploitation. Many of the concerns facing Indigenous communities about the protection of their TK have been around for years; the challenges are not new, and there are solutions out there, as Norway and Australia demonstrate. While fully implementing protective ABS measures may prove challenging given Canada’s federal structure, constitutional division of powers between the central and provincial governments, and desire to promote biotechnology innovation, these are not insurmountable. Other nations have taken on the hard work of domestic ABS implementation, including the voices and perspectives of their Indigenous communities. Canada, a leader during the CBD’s negotiation, has become a laggard; it’s time for that to change.
Kristin Rosendal & Steinar Andresen, “Realizing Access and Benefit Sharing from Use of Genetic Resources Between Diverging International Regimes: The Scope for Leadership” (2016) 16 Int’l Envt’l Agreements 579.