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Biodiversity Forum Work Sessions, 11-12 November 2015 (Post 1)

Biodiversity Forum Work Sessions, 11-12 November 2015

Attending the four work sessions over past two days have left me with mixed feelings. On the whole, I like to believe, it was constructive. The attendance was low, which gave us the opportunity to engage with each other, as well as DEA, on a one-one-basis. For the most part, both industry and DEA made an effort to engage constructively to create a common understanding of the issues at hand. Of course, both DEA and industry had to make allowances in order for the debate to flow. Although, officially, there were four sessions, each with its own objective, it became clear that issues at hand are quite interrelated, and will need an holistic approach to resolve. I will post the official session notes when they become available, so, for now, here is a conceptual overview of the issues.

The first session dealt with the concept of bioprospecting and the “discovery” phase as defined in the act. The specific question was, “where / when does the discovery phase end?” The view from industry, and the proposal that will be tabled at the Forum, is that bioprospecting ends at the raw material, or maybe, at the ingredient level – but not at product level. At present, the act views cosmetic / product formulation development as bioprospecting. In other words, the act sees any new application of the biomaterial, on any level in the value chain, as bioprospecting. The view from industry is that the value chain can be divided into three distinct levels, ie, raw material; ingredients and products. Activities that relate to the use of ingredients should not be seen as bioprospecting.

At this stage one must try to understand what the act wants to achieve by including all “development” as bioprospecting. It relates to “fair and equitable benefit sharing”, which is a primary objective of the Nagoya protocol. Bioprospecting, as defined in the act, provides the regulator insight into the value (in the broad sense) that a biomaterial is unlocking – and an opportunity to facilitate benefit sharing. Industry contends that there are many alternative ways to facilitate benefit sharing that does not depend on this very onerous definition of bioprospecting.

It soon became clear that “fair and equitable benefit sharing” and how it relates to TK, (Traditional Knowledge), was the big elephant in the room. What is fair and equitable benefit sharing, and how does it relate to TK? On the one hand, there is a strong view that benefit sharing is ONY relevant if there is TK. On the other hand, there is the view that Nagoya has a “Corporate Social Responsibility” approach, which require community uplifting for all bio-value chain activities. We had an offline discussion with a legal expert in this field who, if my understanding is correct, is clear that, “No TK no benefit sharing”.

Based on the assumption of, “No TK no BS”, industry proposed that BABS be modified to clearly separate material transfer matters from benefit sharing matters. The MTA (Material Transfer Agreement) should be renamed to a Trade Agreement, which includes the standard, commercial, aspects of a supplier / customer agreement. Value created in the bio-valuechain though a series of Trade Agreements is on a “fail value” basis – driven by supply and demand forces. Where an indigenous community is involved in the value chain, they will benefit.

Industry proposed that, where, and if, TK is relevant at ANY point along the bio-value chain, BSAs (Benefit Sharing Agreements) should be put in place. BSAs aims to reward the holders for the use of their TK. It may be seen as a form of “royalty” payments for the rights to “indigenous Intellectual property”. It is important to not at this point that BSAs need not be purely based on monetary rewards and need not be negotiated on a one-on-one basis. It is at this point that BABS needs to create space for each industry to develop “best-practice” approaches to deal with TK and BS.

It was evident from the work sessions that the industries around the table are quite diverse and have unique requirements and suggestions for developing a benefit sharing regime for their respective industries. The chair of the work session on best practice was given a clear mandate to make sure that provision for industry best practice is made in the BABS regulation. (and NEMBA act if required)

This post is getting a bit long, so I will post again on permitting and on the issue of TK.

You are invited to contribute by commenting on this post, or by creating discussion threads on the forum.

Inaugural Bioprospecting Forum meeting – 22 September 2015

I think for the first time ACSA, and the bio-industry in general, have reached through to the decision makers in DEA who are prepared to work with industry to develop industry specific solutions to BABS. Dr Moskou Morumo personally chaired most of the meeting and we were able to actively engage him on the issues at hand. There is acknowledgement from DEA that the current BABS regulation is flawed and that they and industry must work together to fix it. The important point is that we have a very real opportunity to be part of the solution – and we should use it.

This forum (the Bioprospecting Forum) is formally acknowledged by the minister as the vehicle through which all aspects relating to the content and implementation of the BABS regulation will be managed. ACSA has a formal seat on this forum and is the default representative of the aloe industry. Working groups have been identified to look into issues of permitting, benefit sharing (bsa) and material transfer agreements (mta). Within each of these groups, industry will be invited to develop “best practice” proposals as to how permitting, bsa and mta should be approached. This will be collated by the respective working groups and form the basis for concrete proposals to the minister regarding changes to the BABS regulation and its implementation.

For industry to be successful in this process we need to put ourselves in the shoes of DEA, and specifically Dr. Morumo, and understand that, as signatories to the Nagoya Protocol, South Africa is committed to give effect to its objectives. However, Dr. Morumo made it clear that they are quite open to radical changes to the BABS regulation provided, of course, that it meets the Nagoya requirements. So, in sense, we are free of the shackles of the BABS regulation as it stands today and work towards an ideal, Nagoya, solution for the aloe industry. In reality we will have to integrate our requirements with rest of the industry and work with DEA to transform BABS, but that should not stop us from developing innovative ideas to make Nagoya work for the domestic aloe industry.

In closing, I want to reiterate that we have the opportunity to actively help shape BABS into something workable, and even constructive, for the industry. Our challenge is to help DEA to comply with Nagoya in a manner that is feasible to us. Please understand that this train is rolling. We can either be on board and help define the destination, or watch it roll into the distance to an uncertain future.


Nagoya Protocol in action …

IMG_0567In terms of its Bioprospecting Access and Benefit Sharing (BABS) permit Aloe Ferox recently made its first disbursement payments to three traditional tappers registered under the scheme. Traditional Tappers are independent rural entrepreneurs skilled in the craft of harvesting bitter sap from the Aloe ferox plant indigenous to the Cape, which they sell to traders at free market rates.


The disbursement payments in terms of the BABS permit is an additional incentive for tappers to participate in, and benefit from, the ideals envisioned by the Nagoya Protocol.