Accessing Genetic Resources in Canada

Issue 2: Implementing ABS policy in Canada

Question: What are the choices for implementing ABS policy in Canada?

Regardless of whether ABS policy in Canada is coordinated at a national level or made up of independent approaches in various jurisdictions, there will be a need for processes and measures to implement the policies - legislation, regulations, guidelines and voluntary tools (such as codes of conduct and/or administrative procedures).

There is a therefore a need to consider to what extent it will be possible to apply existing tools readily at hand - particularly laws and regulations relating to property and resource management - to the case of genetic resources. For example, ABS policy in Canada may be able to take advantage of existing laws and regulations pertaining to property, trespass, theft and contracts.

Possible Approaches

The Federal/Provincial/Territorial Task Group identified three approaches for consideration with respect to how ABS policy in Canada could be implemented:

Option 1. Create new voluntary and non-regulatory measures to complement existing processes, laws and practices

Under this approach, ABS policy in Canada would be implemented using existing laws in such relevant areas as contract law and property law. The approach would build on current mechanisms, practices and international agreements for access and benefit sharing that are being used, such as in the agriculture and agri-food sectors, and the transfer of technology between researchers and industry. No new laws or regulations would be developed.

Implementation would be supported through current and new non-regulatory tools and voluntary measures such as awareness-raising, educational resources, guidelines and codes of conduct. Core elements relating to prior informed consent to access genetic resources and the sharing of benefits arising from their use, would be addressed through these voluntary measures.

It has been suggested that this approach could be the simplest one to develop, and could require less work to implement than the other options considered. There are good examples of guidelines and codes of conduct developed by other countries or other organizations which Canada could adapt. In addition, this approach would mean that existing practices that currently apply to elements of access and benefit sharing in certain sectors could continue unchanged.

Others have questioned the effectiveness of relying only on voluntary measures such as codes of conduct and guidelines, given the relatively low level of awareness of ABS issues, even among users of genetic resources. As well, such an approach may not bring any additional legal certainty for users and providers of genetic resources, or provide a firm guarantee that the core elements of ABS policy in Canada would be adequately addressed.

Option 2. Create new regulatory and non-regulatory measures to complement existing processes, laws and practices

Under this approach, the focus would remain on using existing laws, regulations and non-regulatory measures where possible (as in approach 1 above), and implementation would be supported through current and newly developed non-regulatory tools and voluntary measures. However, in addition, legislation and regulations would be amended to specifically address genetic resources where gaps are identified. For example, existing permitting systems regulating access to land and biological resources could be amended to specifically address access to and collection of genetic resources and the sharing of benefits resulting from their use. An example of existing regulation or regulation pertaining to access to genetic resources would be those pertaining to research permits for accessing plants in protected areas.

It has been suggested that this approach could help speed implementation of ABS measures across Canada, when compared with the third option outlined below, given that this approach would take less time than developing and enacting new ABS-specific rules.

At the same time, some feel that it could actually involve greater complexity, and thus could take longer to implement than the third option, due to additional administrative burden in amending regulations. Some also question whether or not existing mechanisms, which were developed to regulate access to other natural resources, are really well designed to regulate access to genetic resources or the sharing of benefits arising from their use.

Option 3. Create new ABS-specific legislation and regulations

Under this approach, new ABS-specific legislation and regulations would be developed at the federal level and/or the provincial and territorial levels. Specific legislation and regulations would establish requirements for obtaining prior informed consent for access to genetic resources and for negotiating the terms of use and the arrangements for the sharing of benefits resulting from the use of genetic resources.

It has been suggested that this approach could bring a consistency of application of ABS policy in Canada. This would help ensure legal certainty to users and providers of genetic resources in Canada, as it would create clear rules which have to be followed when accessing genetic resources and sharing the benefits from their use.

Others have noted that it could take several years before new legislation is in place and implemented, increasing the risk that existing gaps in laws and regulations relating to the access to genetic resources and benefit sharing would remain in the meantime. The costs of developing, maintaining and enforcing any new legislation also could outweigh, at least in the short term, any benefits from increased access to genetic resources. This new legislation could create duplication with existing legal requirements in some provinces or territories.

What do you think?

We want to hear your views on how ABS policy in Canada should be implemented:

  • Are there specific things you like about each of these approaches? Do you have concerns about any of them?
  • How do you think each of these approaches would affect you, your community, your orgazation or your industry sector?
  • Can you think of any other approaches that need to be considered?