The Convention on Biological Diversity is a multilateral treaty with 193 parties, including Australia.
The three objectives of the convention are:
the conservation of biological diversity
the sustainable use of its components, and
the fair and equitable sharing of the benefits arising from the use of genetic resources.
Australia ratified the Convention on Biological Diversity on 18 June 1993. More information can be found at the Convention on Biological Diversity website.
The Nagoya CoP10 logo - Life in harmony, into the future depicts the convention's commitment to safeguard our precious biodiversity for the next generation.
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the Protocol) is a global agreement that implements the access and benefit-sharing obligations of the Convention on Biological Diversity (CBD).
It was adopted in Nagoya, Japan in October 2010, after six years of negotiations. Australia signed the Protocol in January 2012, and is now developing its approach to implementation and ratification.
Why a Protocol?
The Protocol’s objective is the fair and equitable sharing of benefits arising from the use of genetic resources which contributes to the conservation and sustainable use of biodiversity, implementing the objectives of the CBD.
Genetic resources from plants, animals and microorganisms are increasingly valuable in the development of specialty enzymes, enhanced genes, or small molecules. These can be used in many areas, including crop protection, drug development, the production of specialized chemicals, or in industrial processing.
Finding a practical way to share these benefits has been of particular concern to biodiversity-rich developing countries. However, very few countries have implemented a transparent access system that welcomes and encourages research.
Until now, the lack of a coherent global standard has resulted in a high level of mistrust and obstacles to biodiversity research and its potentially valuable outcomes.
The Protocol establishes a legally-binding framework that helps researchers access genetic resources for biotechnology research, development and other activities, in return for a fair share of any benefits from their use. This provides the R&D sector with the certainty they need to invest in biodiversity-based research.
Indigenous and local communities may receive benefits through a legal framework that respects the value of traditional knowledge associated with genetic resources.
When permits for genetic resources issued by Australian jurisdictions are lodged with the United Nation’s Access and Benefit-Sharing Clearing House, they will be internationally recognised as evidence that those resources were accessed with Australia’s prior informed consent, and on mutually agreed terms.
Australia’s existing domestic measures are consistent with the Protocol and are serving as models for other countries as they develop or revisit their own domestic access regimes.
However, in order to participate in the global system, Australia needs to develop measures to make sure that the genetic resources and associated traditional knowledge used in Australia were legally acquired in the country from which they come.
When does the Nagoya Protocol apply?
The Protocol applies when genetic resources are accessed and ‘used’. Under the Protocol, ‘used’ means to conduct research and development on the genetic and/or biochemical composition of genetic resources.
The Protocol covers genetic resources within national jurisdiction - with some notable exceptions:
The Protocol does not apply to genetic resources covered by specialised access and benefit-sharing agreements such as the International Treaty on Plant Genetic Resources for Food and Agriculture, or the framework for pandemic preparedness of the World Health Organisation.
The Protocol does not apply to human genetic material, or to resources that were acquired before the Protocol comes into effect.
Australia can only ratify the Protocol when it is confident that all obligations are being met – this requires changes to domestic law.
Each Party to the Protocol must establish rules that genetic resources and associated traditional knowledge used in their jurisdiction have been acquired legally.
Each Party must also establish one or more ‘checkpoints’ to gather information on the source of the genetic resources, the establishment of mutually agreed terms and the use of the genetic resources.
In several countries such checkpoints already exist in public funding processes, in import regulations or in patent offices. Australia has yet to decide how to implement its checkpoint.
Users will need to demonstrate at Protocol checkpoints that the genetic resources they use were legally acquired. Permits issued by Australia meet these standards.
To help researchers meet these requirements, the Protocol sets standards for countries that regulate access to their genetic resources and associated traditional knowledge.
These rules must be readily available, provide for legal certainty, and be clear and transparent.
A ‘competent national authority’ authorised to make a decision on access must be publicly identified for each country - and they must provide a decision in writing in a cost effective manner and within a reasonable time.
Where access is granted, a permit must be issued to enable researchers to demonstrate their compliance with the access rules.
When the permit is lodged on the International Access and Benefit-Sharing Clearing House, it becomes an internationally recognised certificate.
The clearing house will facilitate due diligence, and underpin legal certainty by providing evidence that genetic resources and associated traditional knowledge were acquired with prior informed consent and on mutually agreed terms.
Where scientific research and development on genetic resources uses Indigenous traditional knowledge, countries have to make sure that the knowledge was acquired in accordance with the rules of the country where those Indigenous people live. The knowledge should be accessed with the prior informed consent of the Indigenous community providing the knowledge, and on mutually agreed terms.
How will Australia implement the Nagoya Protocol?
The Australian Government is consulting with the research community, Indigenous people, industry partners and state and territory governments to find the best way to implement the Protocol in Australia.
A key issue for Australia is having a workable and cost-effective system of checkpoints to monitor the use of genetic resources from Australia, and from other nations, that are used in our country.
Australia is now pursuing the implementation and ratification of the Nagoya Protocol. The Department of Sustainability, Environment, Water, Population, and Communities invites you to provide your views on the best way to implement the Protocol in Australia.
This is the first general invitation to comment since the signature of the Nagoya Protocol, and further requests for comment will be distributed in 2013 as the Australian Government proposal for implementation takes shape. Please include your full name and address in your submission.
Please forward this invitation to comment on to interested colleagues and organisations.
Comments should be addressed to:
Protected Area Policy and Biodiscovery
Department of Sustainability, Environment, Water, Population and Communities
GPO Box 787
Canberra ACT 2601
or emailed to: firstname.lastname@example.org
For further information on the Nagoya Protocol visit cbd.int/abs/