Accessing Genetic Resources in Canada
Issue 1: Developing ABS policy in Canada
Question: What should the approach be to ABS policy in Canada?
Any ABS policy in Canada must take into account the sharing of powers under Canada's Constitution for the use of lands and their natural resources. In general:
- The federal government has authority over the genetic resources found on federal crown lands and waters, or in federal government possession off site (e.g. plant material held in a federal plant research centre).
- Provinces and territories have authority over public lands within their area of authority (or jurisdiction) and associated natural resources, including genetic resources. They are also responsible for most kinds of property law, including laws governing access to privately-owned lands.
- In certain cases, those Aboriginal peoples party to self-government agreements and comprehensive land claim agreements may have authority in those agreements over the granting of access to lands and resources under their jurisdiction. Aboriginal groups may also have rights that can be exercised on Crown lands.
Adding to this complexity is the fact that provinces and territories face very real differences in terms of their economic sectors, resource management legislation and land ownership patterns. For example, in many parts of the country private land accounts for less than 10% of the total area of a province or territory while the level is 50% or more in some Atlantic provinces. The constitutional framework of Canada also recognizes and affirms existing Aboriginal and treaty rights pursuant to section 35 of the Constitution Act, 1982.
All of these constitutional, legislative, social, cultural and economic factors which shape the various jurisdictions in Canada must be addressed when developing effective ABS policy in Canada.
The Task Group identified three possible ways that ABS policy in Canada could be approached:
Option 1. Nationally consistent approach
Under this approach, federal, provincial and territorial governments would work together to develop a national ABS policy based on common principles and core elements. Jurisdictions would tailor implementation to address their own circumstances, but would try to ensure consistency among their approaches wherever possible. Those sectors that have already developed and are practicing their own ABS systems would be able to maintain their existing practices under the national approach, provided they meet the core principles agreed to by the jurisdictions.
It has been suggested that this approach could help build common approaches to the core elements (see Glossary) of ABS policy in Canada. In cases where genetic resources are shared across jurisdictions, it could discourage users from seeking to access genetic resources within a jurisdiction where the policy is either absent or relatively undeveloped. As well, increased legal certainty for both users and providers of genetic resources could attract more scientific research and thus generate greater benefits for Canada and Canadians.
At the same time, others have noted that a coordinated approach could require a significant investment of effort and time to get the approval of the various implementing jurisdictions and there is a risk that some practices which already exist in some sectors may have to be modified.
Option 2. Independent approach for each jurisdiction
Under this approach, ABS policies would be developed independently in each jurisdiction without any formal attempt to coordinate common principles and core elements. Jurisdictions would also have the option of not developing an ABS policy at all and continuing with the status quo.
It has been suggested that this approach could better enable provinces and territories to adopt ABS policies and implement approaches that best fit their specific needs. It also could allow implementation of ABS measures to move at a faster pace than coordinating ABS policy in Canada with a number of jurisdictions.
On the other hand, this approach could generate a patchwork of inconsistent policies which could result in confusion about the different rules which apply to ABS in different places in Canada. It also could lead to duplication of effort among jurisdictions in terms of developing the tools and skills needed to administer ABS policy in Canada.
Option 3. Single national approach developed by the federal government
Under this approach, the federal government would develop a single ABS policy for Canada.
It has been suggested that this approach could make implementation of ABS measures simpler, because there would be just one jurisdiction (the federal government) which would be developing the policy for other jurisdictions to adopt. It also could increase legal certainty about the use of genetic resources for both users and providers of genetic resources, which could encourage further investments in conservation and building scientific knowledge of biodiversity.
However, because of the way powers are shared in Canada, this approach could result in an inefficient and limited national policy, as provinces and territories could choose not to participate. It could also be difficult to adapt and administer a single national approach to the different circumstances in different provinces and territories as well as for different sectors and sub-sectors.
- What is Access and Benefit Sharing (ABS)?
- Purpose of this paper
- Glossary and key concepts
- Issue 1: Developing ABS policy in Canada
- Issue 2: Implementing ABS policy in Canada
- Issue 3: Traditional knowledge associated with genetic resources
- Incorporating your responses into the decision making processes
- Date Modified: