Access & Benefit Sharing Provisions Under Biodiversity Conservation Law in Australia & Its Implications for India
Keywords:Indigenous People, Bio prospecting., Biodiversity Conservation, Access & Benefit Sharing, Traditional Knowledge
Australia played a major role in the developing ABS framework under biodiversity conservation law. Australia is a megadiverse country with complex ABS experience and possessed huge support from the biodiversity stakeholders. Australia has adopted the regulations regarding access benefit sharing under article 15 of CBD, 1992. The Australian legislation is in compliance with PIC and MAT. The agreement reaffirms faith in CBD, 1992, Bonn Guidelines, 2001 and Nagoya Protocol, 2009. The government system of Australia is a constitutional federation which is made up of six sovereign governments, two autonomous territories, and a national government. It has a ‘common law’ system adopted from Britain. Australia’s experience is extensive with ABS to draw lessons about developing an effective institutional mechanism for public and private sector with equitable benefit sharing in scientific and commercial access. The access and benefit sharing provisions under biodiversity conservation law in Australia have potential impact to design its national laws and policies for India by synergizing environmental law and intellectual property rights in a sustainable framework.
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Regulation 8A.10 of Environment Protection Biodiversity Conservation Regulations, 2000 deals with informed consent:
If the access is sought for a biological resource which lies in an area that is indigenous people’s land and if an access provider and owner of the land is same or a native title holder for the land, it is required for the owner or native title holder to give informed consent to a benefit-sharing agreement concerning access to the biological resources.
In considering whether an access provider has given informed consent to a Benefit sharing agreement, the Minister must think about the accompanying issues:
a. whether the access provider had sufficient learning of these Regulations and could take part in sensible transactions with the candidate to allow the benefit sharing agreement;
b. whether the access provider was given sufficient time:
i. to think about the application for the permit, incorporating time to counsel with important individuals; and
ii. if the organic assets are in a region that is indigenous individuals' territory and an access provider for the assets is the proprietor of the land, to counsel with the customary proprietors of the land; and
iii. to arrange the benefit-sharing assertion;
c. if the biological resources are in an zone that is indigenous people’s property and an access provider for the assets is the proprietor of the land and is represented by a land council — whether the perspectives of the land council about the matters mentioned in paragraphs (a) and (b) have been looked for;
d. if access is sought to the biological resources of an area in relation to which native title exists — the views of any representative Aboriginal/Torres Strait Islander body or anybody performing the functions of a representative body, within the meaning of the Native Title Act 1993, for the area about the matters mentioned in paragraphs (a) and (b);
e. whether the access provider has received independent legal advice about the application and the requirements of these Regulations
The Minister may be fulfilled that informed consent has been given by any native title holders who may be affected by the issue of a permit if the benefit-sharing agreement:
a. is a registered indigenous land use agreement, under the Native Title Act 1993, for the area; and
b. authorises the action proposed to be taken under the permit; and sets out the native title holders’ consent to the issue of the permit.
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