National measures on access to genetic resources and
benefit sharing- the case of The Philippines.
The Philippines is one of the richest
countries in Southeast Asia in terms of biodiversity. It signed the CBD in
June, 1992 and ratified it in October, 1993.[1]
Prior to the ratification of CBD, there were no significant legislations
regulating access and benefit sharing relating/derived from biogenetic
resources and associated traditional knowledge. “The Guidelines for the
Collection of Biological Specimens in the Philippines”, which was adopted in
1990 by government agencies and academic institutions was the only legal
document dealing with issues related to bio prospecting in the Philippines.[2]
Rather than being a regulatory framework for bio prospecting, these guidelines
were mainly an administrative coordination and permit system.[3]
1.1)
The
Presidential Executive order 247, 1995
The Presidential Executive order 247 (EO
247) Prescribing Guidelines and Establishing a Regulatory Framework for the
Prospecting of Biological and Genetic Resources, their By-products and
Derivatives, for scientific and Commercial Purposes[4]
was the first national legislation on ABS ever to be introduced.[5] In
accordance with the provision of section 15[6] of
the EO 247, the document was further clarified by the Implementing Rules and
Regulations on the Prospecting of Biological and Genetic Resources
(Implementing Regulations)[7].
Together, the EO 247 and the Implementing Regulations established the first detailed
legal framework for bio prospecting and access to biogenetic resources.
The preamble of the EO 247 reasserts
the
mandate of article 16 of the CBD and reaffirms the rights of indigenous
cultural communities to preserve their knowledge and practices and use them
directly or indirectly for commercial use.[8]
1.1.1) Scope
The EO 247 governs all biological and
genetic resources in public domain, including natural growth in private lands
owned by state that can be utilized by both foreign and local individuals, and
government as well as private entities and organisation.[9] Furthermore,
it covers all the activities related to bio prospecting aimed at discovering,
exploring, or using biogenetic resources for pharmaceutical development,
agricultural, and commercial applications.[10]
It however excludes traditional uses from its scope.[11]
1.1.2) The prior informed
consent
The Implementing Rules and Regulations
define PIC as, ‘the consent obtained before undertaking any bioprospecting
activity by the applicant from the Local Community, including Indigenous Peoples,
concerned individuals and government agency after disclosing full scope and
intention of the bioprospecting activity, in a language and process understandable
to the community.’[12]
The Regulations requires that biological
and genetic resources bioprospecting must be done only after obtaining PIC from
the concerned Indigenous Peoples, Communities, Individuals and concerned
government agencies.[13] In
cases where PIC is to be obtained of indigenous cultural communities, the
consent of the concerned communities must be obtained in accordance with their
customary laws.[14]
Once the PIC has been obtained and the application for carrying out
bioprospecting activities [15][Citation needed, see section 7 of the Regulation] has
been accepted, the contracting parties depending upon on the nature of the
activities envisaged must sign either an academic research agreement (ARA)[16]
or a commercial research agreement (CRA)[17].[18]
Only after fulfilling the aforementioned procedures bioprospecting activities
may be conducted.
1.1.3) The Inter-Agency
Committee
The Inter-Agency Committee is a body established
by the EO as the regulatory body to ensure that the provisions of the EO are
enforced and properly implemented.[19] The
committee is located within the Department of Environment and Natural Resources
and supported by a technical secretariat.[20]
In formation of the committee to ensure
the participation of all the relevant agencies and concerned communities a
multi- stake holder approach was chosen. As a result the committee is comprised
of representatives from all concerned stake holders including, Indigenous
communities, nongovernment organisation and government agencies.[21]
The committee processes application for
research agreements and depending on the nature and character of the
prospecting activity, if deemed appropriate, recommends for approval to the
concerned government agencies.[22]
It also works on ensuring the rights of indigenous and local communities in
regard to right over biological resources, use of traditional knowledge
associated with genetic resources etc as stated in section 3 and 4 of the
executive order.[23]
The committee holds power to issue necessary rules and regulations in order to
effectively implement the provisions of the EO[24],
‘Implementing Rules and Regulations’ which was formulated in 1996 can be an
example in this context. The Committee also functions as the national focal
point for all the access and benefit sharing procedures.
The EO further specifies that all
bioprospecting activities should not in anyways, harm biodiversity, ecological
balances or affect the inhabitants where such activity is being carried out. An
Environment Impact Assessment must be done in order to determine the
possibility or feasibility of such activities. Bioprospecting without an
agreement are considered criminal offence and any act that comes in contrast
with the agreement can result in cancellation or revocation of the agreement,
confiscation of collected material, forfeit of bond and perpetual ban from
prospecting activities in the Philippines.
2.1)
The Wildlife Resources Conservation and Protection Act 2001.
The Wildlife Resources Conservation and
Protection Act[25]
entered into force in 2001 with an objective of conserving and ensuring the
sustainability of all wildlife resources habitats in the Philippines.[26]
The Act together with its Implementing Rules and Regulations[27]and
Draft Guidelines for Bio prospecting Activities in Philippines[28]provides
an elaborated framework specifically for bioprospecting and benefit sharing.[29]
The Act defines bioprospecting as, research,
collection and utilization of biological and genetic resources for purposes of
applying the knowledge derived there from solely for commercial purposes[30];
and considers such activities as legal once the proponent formally declares, compliance
with and commitment(s) to reasonable terms and conditions that may be imposed
by the concerned agency, which are necessary to protect biological diversity.[31]
2.1.1.)
Draft Guidelines for Bioprospecting Activities in the Philippines: -
In terms of Access and Benefit Sharing
legislations, Draft Guidelines for Bio prospecting Activities in the Philippines
has introduced detailed benefit sharing provisions which were lacking in
previous laws. The Guidelines form an attempt to streamline the access and
benefit sharing procedure in the Philippines, facilitate compliance, and
establish a cost-effective, transparent, and standardised system. It also provides guidelines for obtaining PIC
of resource providers, and in negotiations for fair and equitable sharing of
benefits arising from bioprospecting with relevant parties.[32]
It applies to all biological and genetic
resources such as wildlife, private lands, ex situ collections, protected
areas, and ancestral domains found within the Philippines.[33] However,
collection of resources for application in traditional field along with other
exceptions[34]
falls beyond the scope of the law.
The procedure of obtaining PIC is almost
identical to the EO 24 except for some changes in procedure of publishing
notifications and public consultations. As per the guidelines the applicants
should inform interested parties of their intention to carry out bioprospecting
activities through a letter of intent. A summary of the research proposal must
be made available to the concerned communities in a language that is
comprehendible to them; this requirement was missing from the EO 247. Instead of 60 days as mandated by EO 247, now
the concerned agencies or private owners have 30 days to issue the PIC making
the procedure more practical. It is also mandatory to obtain the free and prior
informed consent (FPIC) from the indigenous people and communities as
determined by their customary laws.
In regard to benefit access and benefit
sharing, the draft guidelines significantly limit the freedom of parties of
bioprospecting agreements with regards to the benefits to be shared. Chapter VI of the Draft Guidelines deals about
the benefit sharing derived from bioprospecting. It specifies every single
detail of the process, including the kinds of benefits that can be shared, who
can be the beneficiaries, the provisions for minimum upfront payment,
royalties, bioprospecting fees, non monetary payments etc.[35]
In addition, it put in a place a mechanism for monitoring the principles of
fairness and equity in benefit sharing, with a checklist of suggested
indicators.[36]
The new legal framework
contained in the draft guidelines covers the inadequacies of previous laws and
responds to the loopholes and drawbacks by introducing new provisions. It is
noteworthy that the draft guidelines set a uniform procedure for accessing
genetic resources used for commercial purposes and clarifies previous overlaps
between the different legislative instruments. However, at the moment the draft
only have status of a code of conduct and does not bind or supersedes any
existing laws.
The EO 247 together with its
Implementing Regulations has established a detailed access and benefit sharing
legal framework based on the principles of CBD, which regulates the
bioprospecting to a much higher level. However, it does not regulate the subsequent
use of these benefits or ensure that the benefits would reach the source
communities or that the benefits would be used to foster conservation, as
required by the CBD. When it was first implemented, it received negative
responses from academics and other research bodies about its long and tedious
approval process for concluding research agreements. Many concluded that its
regulatory measures were discouraging to advancement of research on biological
resources.[37]
In order to cover the deficiency of the
EO 247 and other laws, the draft guidelines were introduced in joint initiation
of Protected Areas Wildlife Bureau (PAWB) and DENR as a part of project called,
“support to the implementation of EO 247 in the Philippines” funded by GTZ. The
draft guidelines introduced detail provision for benefit sharing which was
lacking in the previous laws. It also widened its application by including Ex
Situ collections under its scope for the first time. Even the provision of CBD
does not apply to Ex Situ collections. The draft guide is expected to give the
bioprospecting measures of the Philippines a new height after it comes to
force. The draft guidelines have reaffirmed the rights of the Indigenous
peoples and communities over biogenetic resources and made it mandatory for the
proponents to obtain PIC as well as FPIC from them before conducting any
activities of bioprospecting. Furthermore, it also regulates the benefits
derived from the bio genetic resources and ensures that the benefits are received
by the providing and affected communities.
Apart from the above mentioned legal
instruments, the use of biological resources in the Philippines is governed by
a number of other legislations, including the Indigenous Peoples’ Rights Act[38],
the Traditional and Alternative Healthcare Act[39],
and the National Museum Act[40].
The provisions of these laws are in conformity to the EO 247, however, they
could; in some cases influence the legal force or interpretation of the primary
ABS laws.[41]
In this way the
Philippines has undertaken the national implementation of ABS measures.
References: -
[1]
List of parties, retrieved from https://www.cbd.int/convention/parties/list/
(Accessed on 17th September 2013).
[2]
A. Smagadi, ‘National Measures on Access
to Genetic Resources and Benefit Sharing – The case of the Philippines’, Law,
Environment and Development Journal (2005), P. 60
[3]
Ibid.
[4]
Executive order no 247, 18 May 1995.
[5]
K. Swiderska et al., Developing the
Philippines’ Executive Order no 247 on Access to Genetic Resources,
Participation in Access and Benefit- Sharing Policy, International
Institute for Environment and Development, (2001).
[6]
Section 15 of the Executive order 247 states, “The implementing rules and regulations shall be formulated by the
Inter-Agency Committee and signed by the Secretary of Department of Environment
and Natural Resources not later than three months after the effectively of the
Executive Order.”
[7] Administrative Order no 96- 20, Inter- Agency
Committee and Department of Environment and Natural Resources, 1996.
[8]
Preamble of the Executive Order 247, 1995.
[9] Section
3.1(a), Implementing Rules and Regulations on the Prospecting of Biological and
Genetic Resources, Administrative Order No. 96-20, 2004.
[10]
Section 3.1(b), Implementing Rules and Regulations, 2004.
[11]
Ibid.
[12]
Section 2(1) w, Implementing Rules and Regulations, 2004.
[13]
Section 7, Implementing Rules and Regulations, 2004.
[14]
Section 7.1.2, Implementing Rules and Regulations, 2004.
[15]
As per section 7 of Implementing Rules ..............................
[16]
Academic research agreement deals with the prospecting of biogenetic resources
for purely academic purpose and only duly recognised Universities and academic
institutions of the Philippines and domestic governmental and intergovernmental
entities can apply for this type of agreements.
[17]
As per section 3 of the EO 247, “If the research and collection of biological
and genetic resources is intended, directly or indirectly, for commercial
purposes, the agreement must be a Commercial Research Agreement.”
[18]
Section 3, EO 247, 1995.
[19]
Section 6, EO 247, 1995.
[20]
Section 10 & 11, Implementing Rules and Regulations, 2004.
[21]
Section 6, EO 247, 1995.
[22]
Section 7(a), EO 247, 1995.
[23]
Section 7 (e), EO 247, 1995.
[24]
Section 7(j), EO 247, 1995.
[25]
Wildlife Resource Conservation and Protection Act, Republic Act No. 9147 of the
year 2001.
[26]
Ibid, Section 2.
[27]
Implementing Rules and Regulations on the Prospecting of Biological and Genetic
Resources, Administrative Order No. 96-20, 2004.
[28]
The Draft Guidelines were issued according to section 14 of the Wildlife Act
and Rule 14(1) of the Implementing Rules to Wildlife Act. Which states that, “The Department of Agriculture and the
Palawan Council for Sustainable Development must issue joint guidelines
specific for bioprospecting.”
[29]
A. Smagadi, ‘National Measures on Access
to Genetic Resources and Benefit Sharing – The case of the Philippines’, Law,
Environment and Development Journal (2005), P. 60
[30]
Section 5(a), Wildlife Resource Conservation and Protection Act, Republic Act
No. 9147 of the year 2001.
[31]
Section 14, Wildlife Resource Conservation and Protection Act, Republic Act No.
9147 of the year 2001.
[32]
Section 4, Draft Guidelines for Bioprospecting Activities in the Philippines.
[33]
Section 2, Draft Guidelines for Bioprospecting Activities in the Philippines.
[34] As
per section 3 of the Guidelines, it does not apply to the following uses of
biological resources:
·
Traditional Use
·
Subsistence consumption
·
Conventional Commercial consumption for direct
use such as logging or fishing
·
Scientific research on wildlife under section 15
of the Wildlife Act
·
Scientific research on agro diversity
·
Existing Procedures of collection and transport
of wildlife species exclusively for commercial or conservation breeding or
propagation under sections 17 and 24 of the Wildlife act; and
·
Ex-situ collections currently accessed under
international agreements where the Philippines is a party.
[35]
See Chapter VI of the Draft Guidelines for Bioprospecting Activities in the
Philippines for more details.
[36]
Section 23 and Annex V, Draft Guidelines for Bioprospecting Activities in the
Philippines.
[37]
K. Liebig et al., “Governing
Biodiversity- Access to Genetic Resources and Approaches to Obtaining Benefits
from their Use: The Case of the Philippines “, Reports and Working Papers,
German Development Institute (2002), P. 1- 107.
[38]
Republic Act 8371 of the year 1997.
[39]
Republic Act 7586 of the year 1992.
[40]
Republic Act 8492 of the year 1998.
[41] Perry
S. Ong, ‘Access and Benefit Sharing:
Experiences from the Philippines, A Mega diverse Developing Country’,
Wildlife Conservation Society of the Philippines (2005)
