Access and Benefit Sharing
Access and Benefit Sharing (ABS) refers to the ways in which “genetic resources may be accessed, and how the benefits that result from their use are shared between the peoples or countries using the resources…and the people or countries that provide them.”
Aboriginal territories are the natural domains of many important genetic resources. In addition, the traditional knowledge of Aboriginal peoples is often used to “discover” genetic resources and new or potential uses for them as commercial products. When genetic resources from Aboriginal communities are commercialized, the resulting products are often protected through intellectual property rights, including patents.
Aboriginal peoples are rarely consulted about the use of resources extracted from their territory or created through their traditional knowledge. Infrequent or inadequate consultation means that these important resources are being used and exploited without the informed consent of the people who rely on them for their health and livelihood. Aboriginal communities and groups also receive no additional benefits or special access to the products and technologies created through the use of their knowledge or from genetic resources taken from their territory.
Every single living organism on Earth contains genetic material that may be useful to humans. These genetic resources play a critical role in the creation, development, and commercialization of a wide variety of products and technologies.
The Nagoya Protocol
Canada’s intellectual property framework does not adequately protect Indigenous rights over their genetic resources. Like other leading biotechnology countries, Canada recognizes and rewards scientific and technological advances made using biological resources through conventional intellectual property rights, like patents. The patent system and intellectual property law do not fully capture or protect traditional forms of knowledge. For example, Indigenous traditional knowledge is often “too old” for intellectual property protections, which means that it is legally in the public domain. As a result, industry is often able to benefit at the expense of Indigenous peoples, by patenting products that use genetic resources from traditional Indigenous lands, and by using Indigenous knowledge to find and discover new uses for those same genetic resources.
National and international efforts are currently underway to correct this fundamental imbalance. In 2010, a new, legally-binding international agreement called the Nagoya Protocol was adopted. This agreement supports the UN’s Convention on Biological Diversity by laying out how national governments can create comprehensive legal frameworks for fair and equitable access to genetic resources, as well as the sharing of benefits that arise from their use (commonly referred to as access and benefit sharing, or ABS). In particular, the Nagoya Protocol requires any new national framework to contemplate the significant role played by traditional knowledge in accessing, using, and benefitting from genetic resources. Canada has not yet signed the Nagoya Protocol, citing its lack of a national ABS policy and inadequate preparedness to implement a new ABS framework.
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