The United Nations Convention on Biological Diversity (CBD) has three objectives: the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. The Convention supports the greater valuation of biological/genetic resources by recognizing States' sovereign rights over them1. Previously, genetic resources were generally viewed as the common heritage of humankind and research scientists freely accessed plants and animals throughout the world. The Convention sets out the parameters for accessing genetic resources that require the users of the genetic resources to obtain prior informed consent from the providers and to develop mutually agreed terms before sampling of genetic resources proceeds2.
In 2002, the voluntary Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from their Utilization were adopted by CBD Parties. The guidelines were intended to assist Parties, Governments and other stakeholders in developing strategies and in establishing legislative, administrative or policy measures on access and benefit-sharing. They include prior informed consent procedures, benefitsharing provisions for genetic resources and associated traditional knowledge, and user country measures. The Guidelines are considered as a useful first step in an evolutionary process in the implementation of access to genetic resources and benefit-sharing related provisions of the Convention.
At the World Summit on Sustainable Development (WSSD), held in Johannesburg in 2002, Heads of State agreed to negotiate an International Regime on ABS under the Convention on Biological Diversity. The WSSD Plan of Action also called on countries to implement the voluntary CBD Bonn Guidelines at the national level.
At their Seventh Meeting (2004), Parties the CBD mandated the Ad Hoc Open-ended Working group on Access and Benefit-sharing (WGABS) to elaborate and negotiate an international regime on access to genetic resources and benefit-sharing with the aim of adopting an instrument/ instruments to effectively implement the provisions in Article 15 and Article 8(j) of the Convention and the three objectives of the Convention.
Negotiations are on-going and it is impossible to predict when talks will conclude or to anticipate the shape of the International Regime. It is certain, however, that the call for a legally binding Regime (i.e., an ABS treaty) will continue and that measures related to user countries will be a principal focus of the Regime.
If not well-designed, this international regime has the potential to negatively affect the development of Canada's economy by restricting access by Canadian researchers to genetic resources and by increasing transaction costs when accessing or transferring genetic resources. Canada's participation, as a user country with investments in a growing biotechnology industry, is crucial to the creation of an agreement that facilitates access, provides legal certainty and promotes the conservation of resources. At the same time, it will be crucial for the regime to ensure that Canada can derive benefits as a small but important provider of genetic resources.
In September 2004, the Federal/Provincial/Territorial (F/P/T) Ministers of Forests, Wildlife, Endangered Species and Fisheries and Aquaculture considered the emerging issue of ABS. Ministers recognized the importance of the current international negotiations and the need for the stewardship of Canadian genetic resources. They appreciated that ABS could contribute to a number of emerging policy areas, including the conservation and sustainable use of Canada's biological diversity (the "raw material" of the bio based economy), the enhancement of economic productivity through research and innovation, and addressing rural and aboriginal community health and wellbeing. The FPT WG was tasked with the preparation of a draft scoping paper and a companion national strategy for domestic ABS engagement.
1 Article 15 of the CBD States that, "(r)ecognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments, and is subject to national legislation"
2Article 15 of the Convention States that access is to be facilitated and that "(a)ccess to genetic resources shall be subject to the prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party" (Article 15.5) and that "(a)ccess where granted, shall be on mutually agreed terms and subject to the provisions of this Article" (Article 15.4).