Benefit Sharing and Botanic Garden

Terry Sunderland

Background:

The Symposium on Bei7e.fit Sharing and Botanic Gardens was held after the Convention of Biodiversity's (CBD) Subsidiary Body on Scientific, Technical and Technological Advise (SBSTTA) meeting of the 2-6 September, 1996 in Montreal, Canada. The symposium addressed:

The Phytera Agreement:

Phytera is a new US based company, involved in primary screening of raw material. In June 1996, they reportedly signed agreements with up to eight botanic gardens in Europe, includin- two in the UK, for access to ex-situ collections for testinc, foi- blochemical activity. The contracts provide a cash payment of $15 per sample as well as a small royalty ranging from 0.25% - 2.5% of any profits ensuing from commercialization. Incorporated into the agreements is a clause statincy that if a commercial product results from testing, the botanic carden will negotiate a subsequent agreement with the country of origin to determine royalty payments. Interestingly, the royalties to the country of origin will be disbursed from the royalties received by the botanic carden from Phytei-a and not Phytera directly.

Discussion:

Initial discussion centered on whether northern botanic gardens should sell their ex- situ plant material for financial gain, as opposed to the traditioiial exchanges between other botanic gardens and associated institutions for non-profit activities and scientific research. The symposium participants agreed that botanic gardens were not the owners of their collections but were merely the guardians of the resource for the ultimate benefit of science and conservation.

It was also agreed that industry appears to be circumventing the legislative procedures required to obtain direct country agreements, by accessing tropical countries genetic resources held in northern botanic gardens. Even more contentious is that in Phytera's agreements, the botanic gardens are the party responsible for ensuring adequate benefit sharing opportunities to the country of origin concerned.

The argument proposed by industry was that access to genetic material was imperative if the search for novel chemicals was to continue. If legislation now restricted the use of ex-situ material and imposed the same restrictions as the CBD had on access of plant material directly from biologically-rich countries, then they would look elsewhere for their raw materials. Associations between industry and botanic gardens can be very mutually beneficial and any legislation should foster and develop this relationship and not stifle it. The representatives from industry suggested that a moratorium on collecting material from ex-situ collections be avoided while agreements and guidelines were being established.

The representatives from industry also admitted to ignorance regarding the best approach in obtaining direct country agreements. They stated that what they needed from countries and their institutions were guidelines as to how they could best obtain genetic material in a mutually beneficial and equitable manner. At present, they say that they do not know what they have to do to obtain raw plant material and suggested that critical work was being delayed by bureaucracy.

Not enough distinction was made between botanic gardens in the North, with few biological resources and those in the South, with a great abundance of biological resources and their relationship with industry. Many of these latter institutions are small and their collections reflect very much a national or regional learning. Therefore, these botanic gardens are far better positioned, in the context of both national and international legislative requirements, to be involved in agreements that could result in the commercialization of their sovereign genetic resources. In the context of the type of agreements being drafted with Phytera, there is a possibility that a Northern botanic garden can sell genetic material to an industrial concern that originates in a developing country. If a product results from the research and development process, the botanic garden is then responsible for the process of ensuring adequate benefits are shared with the country of origin without prior knowledge of the infrastructure or national legal situation. This is in direct conflict of the spirit of the CBD.

This latter point is very pertinent. It seems that to lay the responsibility for such brokerage at the feet of botanic gardens is a case of industry absolving its individual and collective responsibility. It is unfortunate that many botanic gardens do not yet fully understand the implications of the CBD in the first instance, let alone their responsibilities in adhering to it's legislative guidelines. At present they are woefully inadequate parties to be involved in the implementation of a legal framework that they do not understand. It was suggested, and vigorously agreed that Botanic Gardens Conservation International produce guidelines on the CBD and it's implementation, as they have done for CITES, and exsitu conservation strategies. Hopefully, this will result in producing standardized codes of conduct. Even more disturbing was the suggestion that botanic gardens should also be negotiating with the governments of the country of origin as well as the indigenous people similarly affected by the exploitation of their plant material. It has to argued that botanic gardens are very competent institutions at what they do but have neither the expertise or resources to be brokering agreements on behalf of industry with indigenous peoples. There are many other agencies far better qualified and better placed to do this. In any agreement between industry and a country, indigenous knowledge and control should be respected and legal obligations fulfilled.

Summary of Agreed Principles:

The participants of the symposium agreed on the following:

1 . There is a fundamental gap in the CBD in that botanic gardens do not have a named role in the existing legislation. Hence, there is a policy vacuum.

2. The loophole of Resolution 3 needs immediate attention.

3. All parties, especially NGO's and botanic gardens, need to show good will to industry and help develop a logical and workable framework that will enable mutually beneficial agreements.

4. There is a significant need for the education of all stakeholders on the implications of the CBD and their individual and collective responsibilities.

5. Any new procedures designed to deal with these issues should be designed for simplicity and ease of use, and to keep transaction costs low.

Recommendations for Follow-up Action:

The actual written recommendations of the symposium are as follows (my own comments explaining the text are in italics):

1 . Issues raised in this meeting to be formalized and raised at the next BGCI congress for a full airing.

2. Issues raised in this meeting to be formalized and raised at the next Convention of Parties meeting in Buenos Aires in November.

3. Action not rhetoric. No moratorium while workable guidelines are established.

4. Dialogue to continue between all parties through international meetings such as this one. (A.fbllow up meeting of the same core of participants at this seminar will take place in Buenos Aires in November to ensure that resolution 3 is.fullv aired andfurther discussions regarding the role of botanic gardens in the implementation of the CBD can continue.)

5. Education of the role and implications of the Biod'vers'ty Convention to all stake holders (industry, botanic gardens, NGOs) [For example, BGCI, under guidance from this core group, will produce a basic manual to explain the role and responsibilities of botanic gardens with regard to the biodiversiy, convention.]

6. Highlight positive and ethical movements of plant material, following principles of CBD. [Especially noting existing agreements and partnerships in this context]

7. Increased transparency by all parties, agreements and policies. i.e. all agreements and partnerships to be undertaken in the public domain.

8. Keep transactions costs down (this was a call from industry, suggesting that overpricing of plant resources will lead to industry seeking screening materialfroni other sources).

9. Keep procedures simple and attainable (likewise, access to plant material should be adherent to the guidelines set out by the CBD and national legislation, but easily obtained once protocols are established).

10. Longer term preparation for at least two planned COP IV discussions on the links between insitu and ex-situ material and benefit sharing.

Stake Holders-What Can They Do?:

The symposium identified several actions that could be taken by each of the five major identified interest groups. Points common to several groups are listed at the end.

Botanic gardens:

1 . Develop policies that comply with their responsibility to adhere to the CBD (e.g. acquisition and supply ofplant material, benefit sharing schemes)

2. Develop codes of conduct that reflects this policy.

3. Advise other parties on the legislation (national and global) regarding the supply and trade in plants.

4. Introduce management systems that regard the CBD.

5. Procedures for the implementation of the above.

6. Work with stakeholders

7. Brokering agreements with industry and government (tropical institutions only).

8. Prepare Material Transfer Agreements (MTAS) - as in place at Kew and Limbe Botanic Garden.

Government:

1. Develop a national conservation and sustainable use plan, including the roles of their botanic gardens and other institutions.

2. Develop national legislation outlining the above.

3. Develop mechanisms to ensure benefit sharing with indigenous peoples and indigenous knowledge holders.

Business:

1. Address issues relating to the CBD.

2. Agree to abide by rules of the CBD.

3. Develop industry-wide operating procedures.

4. Disclose origin of raw materials in IPR applications for the' purposes of determining benefit sharing.

Indigenous people;

1 . Role in decision making - work with governments to define their role in policy making/decision making

2. Develop and implement procedures (such as prior informed consent) within their own areas, to control access to biological material and knowledge in their communities (research agreements).

3. Ensure continued access to and control over their biological materials and knowledge.

Multilateral Institutions:

1. Develop model agreements.

2. Develop codes of conduct/standard operating procedures.

3. Develop procedures that extend to private collectors.

4. Fostering multilateral framework for benefit sharing with indigenous people.

5. Options to be considered for identifying and disclosing the source of origin of biological material in intellectual property claims.

Footnotes

1. Other pharmaceutical companies that have agreements with botanic gardens for access to their ex-citu collections include Pfizer (New York Botanical Garden - where collected wild material as well as ex-situ material is used); SmithKline Beecham (who contracted with the Mori-is arboretum to help with the propagation of Campothec-ti ticuminata, an Asian species) and Glaxo Wellcom (RGB Kew). In the past, many botanical gardens have had lucrative collecting agreements with companies for the provision of material, mostly from the tropics.

2. Phytera has a novel approach to the chemical analysis of plant material. They hypothesis that at any one time a plant expresses only between 5% and 10% of it's DNA, hence comparable amount of potential biochemical activity is also expressed at any one time. However if the DNA of a particular sample is cultured (the laboratory equivalent of severe environmental stress) then it can be forccd to exhibit between 90- 1 00% of it's DNA and hence a greater number of biochemicals are release4d and detected. They su-gest that they are able to obtain a cyreater number of biochemicals using far fewer raw material (i.e. samples) as well as lesser quantities of each sample, with only small amount of each being needed to provide enough matrial to culture. Phytera is establishing a "library" of cell cultures from which they can obtain future testino materials.

3. For the purpose of this agreement, the country of origin is defined as the country from where the original material was collected; rather than the phytogeographic range of plant concerned.

4. A number of the participants pointed out that with agricultural products such as wheat, maize etc. it was impossible to determine the exact country of origin because of the centuries of selection and breediii-, iiid hence it would be difficult to incorporate these genetic materials into any legislation relating to their access for research and development. In the case of a material held in botanic gardens collections, this is not the case and records can indicate accurately the source of such matter.

5. The representative from Kew, Noel McGough, who is the CITIES officer there made the point that it took over twenty years before many botanic gardens understood that legislation.

Biological Resources is published monthly by The Bioresources Development and Conservation Programme. The information contained here is intended to contribute to the development of an integrated approach to biological resources management in which human needs and habitat conservation can both be accomodated.

Your comments and questions are welcome. Write to the Editor, Biological Resources.

For further information, contact:

BDCP Newsletter Bureau
Bioresources Development and Conservation Programme
11303 Amherst Avenue, Suite 2
Silver Spring, Maryland 20902
U.S.A.

Phone: 301-962-6201
Fax: 301-962-6205
Email: bdcp@bioresources.org

Administrative Offices