ABS Policies in Canada

Policy Questions in Implementing ABS

ABS is a broad ranging, innovative and complex policy area. It raises some very important policy questions that will have a large bearing on its impact in Canada. Some of the major issues that must be discussed as ABS policy moves forward are presented below.

1) Defining the Scope of the ABS Policy Area

The CBD defines "genetic resources" as the units of functional heredity (e.g. seeds, cuttings, etc.) of biological resources (e.g. micro organisms, plants and animals), which may have real or potential value. 12 The scope accorded to the term "genetic resources" will be the key to understanding the scope of ABS policy in Canada. In some countries, the term "genetic resources" has been limited to refer to in situ "unmanaged" biodiversity, and excludes biodiversity found in commercial settings like forestry and agriculture. In some cases, genetic resources are defined as all biodiversity, including agricultural and other commercial organisms. In yet other cases, the scope of ABS is enlarged beyond the functional units of heredity to include biochemical products such as extracts and specific compounds. Defining this term will determine the scope of the ABS policies and the subject matter of implementation measures.

Canadian ABS policies will need to address some key questions:

  1. What are "genetic resources" in the context of Canadian policy?
  2. Should the scope of ABS policy include commercial species?
  3. Should genetic resources be defined to include products derived from genetic material?
  4. What impact will the different definitions have on:
    • scientific research(ers)?
    • commercial breeders?
    • traditional knowledge holders?
    • bio based industries?
    • existing IP protection?
    • innovation in the bio based economy?

2) Facilitating Access: Granting of Prior Informed Consent
    (PIC) and Identification of Competent Authorities

According to the CBD, States have jurisdiction over their genetic resources. Therefore, to access genetic resources, one must have the prior informed consent (PIC) of the providers of the resources. The main function of PIC is to ensure transparency in the ABS system and facilitate appropriate access to genetic resource. It is not intended to hinder or restrict access.

The implementation of PIC raises technical and legal questions. The following scenario illustrates these: a genetic resource is located on provincial Crown land within territory claimed by an Aboriginal community in the context of land claims negotiations. With respect to PIC, some of the questions that would arise include:

  • Would the approval for access be given at the government level? At the community level? At both levels?
  • At the community level, who has authority to grant PIC? Does their particular community claim sole ownership over the resource/traditional knowledge?
  • Who can verify that PIC was appropriately granted? Who keeps the records? Who decides what information to collect?
  • Should there be a coordinating authority at the national level that would help all jurisdictions liaise with one another and with foreign entities?
  • How will the process involved in developing an approach to PIC (and subsequent identification of the appropriate authority) affect the type of measure taken (i.e. law, regulation, code of conduct, guidelines, etc.) by various jurisdictions?

3) Sharing the Benefits: Mutually-agreed Terms (MAT)

As envisioned, mutually-agreed terms (MAT) in ABS systems are to be negotiated between the user and the provider of a genetic resource. They serve as a contract, stating how the resources are to be used, by whom, and for what purpose. They would also include the terms and conditions for benefit sharing. While there is no common model for MAT, some nations have specified in their national ABS laws as requirements in MAT contracts elements such as joint research partnerships, deposit of samples in a national gene bank, and involvement of local people in research projects. Codes of conduct may also provide a means for ensuring that negotiations take place in good faith and according to best practices.

Key Questions for Canada:

  • Should MAT be case-by-case or would a national or provincial template be more effective?
  • Should a trigger for negotiations be included as a standard term, at what point should this take place? Following interesting research findings? At the patent application stage? Prior to commercialization?
  • Should possible benefits be spelled out (such as those contained in the Bonn Guidelines)? Should there be a focus on either monetary or non-monetary benefits?
  • What complementary measures can be taken to ensure a smooth negotiation process? What role should voluntary codes of conduct or ethical guidelines play?

4) Ensuring Compliance

Genetic resources, by their very nature, present a challenge to a property system that is grounded in spatial terms and has historically operated at the scale of visible commodities of immutable form. Genetic resources can be magnified far away from their origin, they can be split up, they are easily transferable, and as DNA sequences, they can be freely available for all to see on the internet. A number of approaches to solving this tracking problem have been proposed.

As mentioned in the previous section, some argue for changing the patent system to make the disclosure of the country of origin a requirement to be included in patent applications. Another proposed approach is for the issuance, by those who provide genetic resources, of a "certificate of origin" that would indicate that the genetic resource was obtained under ABS compliant conditions. Material transfer agreements, which means in this instance contracts that govern the transfer of genetic material between two organizations, have also been proposed as mechanisms to ensure that the genetic resources are in fact being used for the purposes specified in the MAT. The inclusion of these or other requirements in ABS policies will affect the ability and willingness of both users and providers of genetic resources and traditional knowledge to comply with the policies.

In Canada, the elaboration of appropriate compliance measures may vary between jurisdictions and will greatly depend on the nature of the adopted ABS frameworks. One challenge for Canada in this area will be to ensure a consistent "compliance approach" by which all users would potentially face similar non compliance consequences in all jurisdictions.

Key Questions for Canada:

  • Foreign ABS legislations include compliance measures from criminal sanctions to civil monetary penalties. What types of compliance measures could be considered in a Canadian context?
  • Would there be one authority in each provincial and territorial government responsible for compliance with ABS policies?
  • Should non compliance lead to criminal or civil sanctions?
  • Could non-compliance lead to a withdrawal of financial support for research?
  • Could the patent system, through a disclosure of origin/source requirement, be used as a means verify compliance with ABS by allowing the tracking of scientific activities involving genetic resources and traditional knowledge?
  • What other measures should be put in place to both monitor and enforce compliance with ABS?
  • How can the ease and transparency of compliance measures be assured?

5) Administration: Documentation and Tracking

Tracking and documentation of genetic resources will be a challenging task and can have a great impact on whether ABS is taken up as a viable policy tool. There is a risk that any administrative measures necessary to support the functioning of an ABS system will be too burdensome, and undermine the objectives of fair and equitable sharing of the benefits arising from the use of genetic resources. Administrative measures must be efficient and effective, avoiding the creation of extra and unwarranted burden on both the users and providers of genetic resources in Canada.

Key Questions for Canada:

  • How should administrative measures inform the scope of ABS policies in Canada? What is the best way to achieve a balance between rigourous measures that ensure equitable sharing and requirements that are overly burdensome on those wishing access to genetic resources?
  • Who will be responsible for producing documentation? What safeguards will be necessary to ensure the integrity of the documentation?
  • What is the best way to support the capacity of communities/providers of genetic resources so that they will be in a position to produce any documentation required?
  • Should genetic resources be tracked in any formalized way? If so, what is the easiest and most cost-effective way to do so?

6) Protecting Traditional Knowledge

In many cases, Aboriginal and local knowledge holders share their knowledge with researchers and help them identify the interesting and potentially valuable properties of biological resources. In many places, there is a close relationship between genetic resources and traditional knowledge. Access and benefit measures contained in ABS policies should address this close relationship. Finding the right balance between the respect for cultural practices and spiritual beliefs inherent in traditional knowledge and knowledge sharing is crucial for advancing scientific research that can support the health and wellbeing of Canadians.

The challenge for Canada in this area is to ensure that modalities for accessing traditional knowledge are respectful of the rights of the knowledge holders.

Key Questions for Canada:

  • Who is/are the traditional knowledge holder (s)? Is it the community, individuals within the community, families within a group?
  • Should the protection of traditional knowledge also apply to other knowledge holders, including fishermen, farmers, and local communities?
  • Should a board of Aboriginal representatives be created as a mechanism to enforce compliance with PIC and ABS principles when there is traditional knowledge involved?
  • How can the relationship between customary and statutory law contribute to ABS?

12 The CBD currently defines the term "genetic resources" as: "genetic material of actual or potential value"; "genetic material" is: "any material of plant, animal, microbial or other origin containing functional units of heredity" (Convention on Biological Diversity, article 2: Use of terms).