Accessing Genetic Resources in Canada

Issue 3: Traditional knowledge associated with genetic resources

Question: Should traditional knowledge associated with genetic resources be addressed by ABS policy in Canada?

Another aspect of ABS policy in Canada is that it could address the traditional knowledge associated with genetic resources which is held by Aboriginal communities. Just as genetic resources are recognized as having important economic and social benefits - for example, the development of new medicines - the traditional knowledge of genetic resources and their uses may also be of value to new users. Such knowledge, gained over generations of experience, could include, for example, knowledge of the use of a particular plant as a medicine, or knowledge of the properties of another plant that would suggest potential for a new industrial application. If there is a decision to share this traditional knowledge associated with genetic resources, it could advance the understanding of the uses and importance of genetic resources in many areas, including research and conservation. Therefore, any ABS policy in Canada must consider whether this traditional knowledge associated with genetic resources should be included, and if so, how it should be addressed.

For the purposes of ABS policy in Canada, the term traditional knowledge associated with genetic resources is understood to be the knowledge, innovations and practices of Aboriginal peoples associated with the use of genetic resources which is held by communities in common, in confidence, and is not already in the public domain. The scope of ABS policy in Canada is not intended to include broader traditional knowledge issues already in or beyond the scope of the Convention on Biological Diversity, for example, cultural property and intellectual property rights.

There is no obligation under the Convention on Biological Diversity to include traditional knowledge in an ABS policy. However, the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, which were developed as a voluntary guide for countries on developing domestic ABS policy, includes traditional knowledge associated with genetic resources within its scope. Many other countries with ABS laws have included provisions pertaining to traditional knowledge associated with genetic resources, and it is part of the ongoing discussions about an international regime on ABS.

Authority to grant access to traditional knowledge associated with genetic resources is a complex issue for both users and for Aboriginal peoples. If it was determined that traditional knowledge associated with genetic resources was included in ABS policy in Canada, it would require significant resources to establish a mechanism that would be transparent and equitable.

If traditional knowledge associated with genetic resources was not included in ABS policy in Canada, there would be no new measures taken, but Aboriginal people could continue to use existing practices, such as contract law, to negotiate arrangements with users who wish to access associated traditional knowledge. It has also been suggested that excluding traditional knowledge associated with genetic resources from the scope of ABS policy in Canada could simplify the development and implementation of policy governing only genetic resources.

What do you think?

We want to hear your views on how ABS policy in Canada should address traditional knowledge associated with genetic resources:

  • Should traditional knowledge associated with genetic resources be included as an element under an ABS policy in Canada

Question: If it is decided that ABS policy in Canada should address traditional knowledge associated with genetic resources, how should it be addressed?

Possible Approaches

The Task Group identified three potential approaches to how traditional knowledge could be addressed by ABS policy in Canada. We want to hear your views on these, and on any other approaches which could be considered.

Option 1. Traditional knowledge associated with genetic resources is addressed through voluntary mechanisms and tools

This approach would see traditional knowledge associated with genetic resources addressed through a variety of non-regulatory and voluntary measures, such as voluntary guidelines and best practices, awareness-raising, education campaigns, and other tools (such as model contracts and confidentiality agreements). Voluntary guidance could assist users to access traditional knowledge associated with genetic resources and to negotiate benefit sharing through mutually-agreed terms.

Holders of traditional knowledge associated with genetic resources who choose to share their knowledge and who want to share the benefits arising from that use could consider formal contractual arrangements with those parties wanting access to that knowledge.

It has been suggested that this approach could allow for more streamlined ABS policy in Canada, and for quicker implementation, given that it would require no new rules, or changes to existing ones.

At the same time, this approach might not guarantee the level of legal certainty sought by some providers and users of genetic resources and/or traditional knowledge associated with genetic resources.

Option 2. Traditional knowledge associated with genetic resources is addressed through existing regulatory measures supported by new regulatory and voluntary measures

Under this approach, traditional knowledge associated with genetic resources would be formally addressed when users and providers of genetic resources are developing arrangements regarding access to those genetic resources and the sharing of benefits arising from their use. Any obligations under these arrangements would be dealt with through the existing and new regulatory mechanisms developed to implement prior informed consent, mutually agreed terms and benefit sharing for genetic resources.

In this option, a user of genetic resources could be required to indicate if they accessed traditional knowledge associated with genetic resources which is not already in the public domain, or if they expect to access it after they have accessed a particular genetic resource. Where they have indicated that they have accessed traditional knowledge associated with genetic resources, the users of the genetic resource would need to demonstrate that they have negotiated for the prior informed consent of the provider of the traditional knowledge associated with genetic resources. They would also have to show that they have negotiated arrangements for the use of that traditional knowledge, and for sharing the benefits which might arise from that use.

It has been suggested that this approach better acknowledges the value that traditional knowledge associated with genetic resources can provide to the access and use of genetic resources. This approach could provide security to those holders of traditional knowledge associated with genetic resources who are considering sharing the knowledge but are concerned about how that knowledge might eventually be used.

At the same time, there are some who feel that this approach could also require significant administrative work to change existing mechanisms, and could be complicated and demanding to implement, and would not be easily implemented for private land or resources.

Option 3. Traditional knowledge associated with genetic resources addressed by new ABS-specific legislation and regulations

Under this approach, traditional knowledge associated with genetic resources would be included within new ABS-specific legislation and regulations developed at the federal level and/or the provincial and territorial levels. These new mechanisms would include requirements for obtaining prior informed consent for access to traditional knowledge associated with genetic resources and for negotiating how it would be used, as well as how the benefits from that use would be shared.

It has been suggested that this approach could bring consistency of application of a policy and help ensure legal certainty for users and providers of traditional knowledge associated with genetic resources in Canada, and would promote the sharing of benefits from their use with Canadians.

However, the complexity and time for developing, maintaining and enforcing any new ABS legislation that also included traditional knowledge associated with genetic resources would likely be significantly greater than ABS legislation limited only to genetic resources.

What do you think?

We want to hear your views on how ABS policy in Canada should address traditional knowledge associated with genetic resources:

  • 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 organization or your industry sector?
  • Can you think of any other approaches that need to be considered?