Section: C
Category: Legal Essay
Paper Code: LE-RM-12
Page Number: 371 - 378
Date of Publication: February 10, 2021
Citation: Dr. Ravi Kanta Mishra, Traditional Ecological Knowledge and Biological Diversity Act, 2002: A Critical Analysis, 1, AIJACLA, 371, 371-378, (2021), https://www.aequivic.in/post/aijacla-traditional-ecological-knowledge-and-biological-diversity-act-2002-a-critical-analysis.
Details Of Author(s):
Dr. Ravi Kant Mishra, Assistant Professor, Department of Law, North-Eastern Hill University, Shillong
ABSTRACT
Biodiversity means a variety of living species and it becomes very essential for humanity to survive on this planet. Biodiversity is so important that without it, life is not possible. However, humanity over the last few centuries has depleted almost all biological resources in a manner that it has now become very necessary to conserve them for the survival of the entire ecosystem. On one hand conservation of biodiversity is the need of the hour and on the other hand, its sustainable utilization is also essential for maintaining the livelihoods of the majority of the population. India is a biodiversity hub and so biodiversity-conservation laws play an important role in regulating access to such resources. However, on the other hand, a majority of India’s population is also dependent on biological or genetic resources for maintaining their livelihood. The utilization of such biological resources in a sustainable manner is also dependent on the traditional knowledge possessed by the local communities transmitted from generation to generation even though not documented. Thus, for sustainable utilization of biological resources, the conservation of such traditional knowledge is also essential. This is the reason why analysis of the Indian Legal Framework regulating the access of biological resources becomes important. This essay will therefore analyze the role played by the Indian Legal Framework in the conservation and protection of biological resources and the associated traditional knowledge in India.
KEYWORDS
Biodiversity, Conservation, Livelihood, Sustainable Utilization, and Traditional Knowledge
INTRODUCTION
Biodiversity Act, 2002, deals with the biodiversity conservation, management, and access to biological resources, sharing of benefits, patent constitution, power and function of National Biodiversity Authority and State Biodiversity Board. This Act was enacted by the Parliament in the year 2002 and received the assent of the President of India on 5th February, 2003. Interestingly, the Biological Diversity Act, 2002 had not mentioned the conservation of Biodiversity except Section 37 in which covers the establishment of Biodiversity Heritage Sites. Though conservation and management is analyzed in-depth and under various sections of Indian Forest Act, 1927, Wildlife (Protection) Act, 1972, Forest (Conservation) Act, 1980, etc. Similarly, most of the states of India enacted the Forest Act, to conserve and manage the Biodiversity of forests.[1]
The Biological Diversity Act, 2002, which extends to the whole of India has provisions for the state governments regarding the establishment of State Biodiversity Board, functions, access to Bio-resource, commercialization, etc. The enabling provisions of the Biological Diversity Act, 2002 having bearings on the state governments are mentioned in detail but this Act is almost silent about traditional ecological conservation and protection. This paper focuses on the various provisions of this Act related to traditional ecological knowledge of forest dwellers and tries to critically analyze related sections thereof.
TRADITIONAL ECOLOGICAL KNOWLEDGE (TEK)
Conventional arrangement of knowledge discovers its premise in a line of insight created over numerous ages towards a homogenous presence of humankind with key components, for example, characteristic assets and climate; holistic customary logical usage of the land and woods is assuming a vital function in the presence and food of this information base. Albeit typically not reported on a material medium, it is commonly passed from age to age and by listening in on others' conversations in severe certainty with a devout reason for such exchange. All in all 'Traditional knowledge' alludes to convention-based abstract, masterful or logical works; exhibitions; developments; logical disclosures; plans; imprints, names and images; undisclosed data; and any remaining custom-based advancements and manifestations coming about because of intellectual activity in the mechanical, logical, artistic or aesthetic fields.[2]
Whereas, Traditional Ecological Knowledge[3], also referred to as Indigenous Knowledge or Native Science, indicates the evolving knowledge acquired by indigenous and local peoples over hundreds or thousands of years through direct contact with the environment.[4], this knowledge is explicit to an area and incorporates the connections between plants, creatures, regular wonders, scenes, and timing of occasions that are utilized for lifeways, including however not restricted, to chasing, fishing, catching, agribusiness, and ranger service. TEK is a source of knowledge, practice, and conviction, advancing by versatile cycles and passed on through ages by social transmission, about the relationship of living creatures (human and non-human) with each other and with the climate. It envelops the world perspective on indigenous individuals which incorporates biology, otherworldliness, human and creature connections, and much more.[5]
TEK is comprehensive and the skill concerning the environment tended to, depends on reliance practices of numerous species and is extraordinarily isolated from other, even close by, biological systems.[6]TEK perceptions, supportability practices, and dynamic investment in TEK asset use and the executives depend on data information bases that can reach back several years.[7]
SIGNIFICANCE OF TEK
The utilization of TK adds to calculated pluralism and extends the scope of approaches and data expected to tackle natural issues.[8]Though the interests of various groups associated with it are very unique for example for some indigenous groups, the more extensive social and social parts of TK are exceptionally huge, and this is one reason why managing conventional environmental information has gotten politically unstable.[9]
Politically coordinated groups of indigenous people are starting to affirm authority over their insight frameworks for at least two reasons. To start with, some indigenous groups have seen their insight and natural assets (for instance, therapeutic plants) transformed by others into profitmaking products. Subsequently, they have begun to pose the inquiry of who profits by the chronicle of their insight and to examine how they, at the end of the day, can control their insight and items.[10]
Second, TK has become an image for some groups to recapture power over their social data. Recovering their TK has become a significant technique in numerous parts of the world for developments of social rejuvenation. Such rejuvenation isn't only a social exercise; it is about strength and political control.
The requirement for indigenous groups to control their insight must be adjusted against the significance of customary biological information as the normal legacy of mankind. There are unmistakable and useful reasons why conventional environmental information is significant for the remainder of the world's kin.[11]It is significant for community-based preservation by associating human qualities with protection esteems. Some customary frameworks are of extraordinary interest for biodiversity protection since they depend on different usage rules that circulate asset use pressures in existence. At last, conventional biological insight is a wellspring of motivation for natural morals. Conviction frameworks of numerous indigenous groups fuse the possibility that people are essential for the common habitat, and their relationship with nature might be portrayed as tranquil conjunction.
BASIS FOR PROTECTION OF TEK
The basic parameters for the protection of TEK is found in the principles[12] established in the Convention on Biological Diversity, 1992(CBD), expanded in the Nagoya Protocol, 2011, and reinforced in the United Nations Declaration on the Rights of Indigenous Peoples, 2007 (UNDRIP). These principles provide Indigenous knowledge holders with a right to share in the benefits[13] obtained from the use of their knowledge, emphasizing the need for Free, Prior Informed Consent to be given by the knowledge holders before access and use of that knowledge on mutually agreed terms.[14]
These standards have prompted critical worldwide discussion on the interrelationship among TEK and IPR, especially licenses and plant raisers' privileges created from hereditary assets. The part of TEK in this setting is critical as it brings into the condition the more extensive cultural property of indigenous and local communities. Meanwhile, Art. 11 of UNDRIP recognizes the right of Indigenous peoples “to practice and revitalize their cultural traditions and customs and extends to the right to maintain, protect and develop the past, present and future manifestations of their cultures”. The states’ parties are expected to develop with indigenous people’s effective compensation mechanisms ‘concerning their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs’. {{{{It is in this backdrop, that India as a signatory to these international instruments adopted sui generis legislation to protect these rights and in pursuance of this passed the Biological Diversity Act, 2002.
BIOLOGICAL DIVERSITY ACT AND TEK
Human life depends for its survival on biological diversity and ecological systems[15] yet we have always interacted with this natural environment in ways that are humanly insensitive to its ecological integrity.[16] As far back as old Mesopotamia, individuals utilized horticultural techniques that demolished the richness of the land and the nature of the drinking water. What's more, some Native Americans-since quite a while ago commended for their enthusiasm for the earth-utilized techniques for agribusiness which, whenever rehearsed on a more extensive and more escalated scale, would demonstrate ruinous to the earth.[17] The trouble of plowing the world's dirt, drinking its water, and utilizing its air without harming its regenerative limits is a perpetual challenge.[18]
India enacted a national legislation (i.e. The Biological Diversity Act, 2002) with the intent to protect biodiversity almost nearly a decade after signing the Convention on Biological Diversity in consonance with it. The main objective of this Act is “…to regulate access to biological resources of the country to secure an equitable share in benefits arising out of the use of biological resources and associated knowledge relating to biological resources…”.[19]
This law envisages the National Biodiversity Authority (NBA) at the top of a three-tiered mechanism[20] regulating access to biological resources in India and puts stringent limits on access to biological resources or related knowledge particularly for all foreigners. Under this Act, the people groups from developed and developing nations are treated similarly, paying little heed to their beginning while it separates national companies from international companies.[21]Even though the arrangements of the TRIPS understanding set out that the foreign companies should be treated on equal standards with domestic companies, this Act doesn't appear to have a general riding impact on the current laws on wildlife and forests. It is additionally uncertain that if there should be an occurrence of a contest which law will win. Besides, the solid arrangements to manage access by outsiders are not coordinated at the national level where local knowledge holders are not given solid authority over their assets and knowledge.
This made it mandatory for all to make prior intimation of the intention to obtain biological resources for commercial utilization,[22] to the authority concerned. It further provides that all inventors should obtain the prior consent[23] of the NBA[24] before applying for IPR where the invention is based on any biological resource obtained from India, and grants the authority the power to “impose benefit sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising out of the commercial utilization of such rights”. Given the absence of an extraterritorial ward of the NBA and its powerlessness to screen applications abroad, however, the viability of such an arrangement will remain uncertain.
This Act accommodates the setting up of biodiversity funds at public, state, and local levels. Advantage is offered straightforwardly to people or groups of people just when organic assets or related information is received straightforwardly through them. The ABS methods specified under this Act follow the arrangements of worldwide laws and strategies, especially CBD.[25] The whole strategy as depicted in this Act contributes generously to encourage a worldwide system of 'access and benefit' sharing on traditional knowledge and genetic resources.[26]
Overall, one of the striking features of the regime is that it completely obliterates common property arrangements whose importance and extent in the context of the management of biological resources[27] are still immense. The Act brings together property rights either in the possession of the state through sovereign allocation or in the possession of private innovators through the monopoly of intellectual property rights.[28] It doesn't, notwithstanding, give a system to the privileges of any remaining holders of genetic resources and related knowledge. The outcome is that resources and information that are not designated to private parties through licensed IPR or arrogated by the state to itself, will be considered uninhibitedly accessible.[29]
Even though this Act is an honorable endeavor to ensure the rich natural variety of India alongside a solid instrument to secure the privileges of the inhabitants, there are various reasons why it is an intricate one to explore,[30]e.g. there is no adequate explanation available in the Act to differentiate between key terms such as ‘by-products’ and ‘value-added products which has caused a lot of confusion, because ‘by-products’ are included in the definition of ‘biological resources’ whereas ‘value-added products’ are excluded from the same; thus, it is causing unnecessary difficulty in ascertaining whether one lies under the purview of the Act, or not. Coherent and detailed examples from the concerned authorities will go a long way in getting rid of such confusion.[31]
CONCLUSION
The test for a biodiversity-rich nation like India isn't just to save its natural abundance alone, but to likewise guarantee that its protection and use converts into the prosperity of its people groups. Organic assets and the information related to them can produce abundance, where the term reaches out its simple financial worth. On the off chance that biodiversity laws themselves add to imbalances, either through their substance or in their execution, at that point the requirement for such laws comes into question. If allowing admittance to biodiversity makes a natural and a livelihood crisis, at that point the law and its implementers should be investigated.[32]A law, for example, biodiversity conservation law should, by ideals of its substance and reason, do the trick to persuade individuals about its expectation. Indeed, even a ground-breaking biodiversity law, is rent incapable in an approach milieu that easily and as often as possible commands movements over biological resources from communities to enterprises, encouraging resource misutilization and biodiversity pulverization.
Biodiversity protection is firmly identified with other worldwide natural changes and globalization issues, for example, environmental change, land use and land cover change, and economical turn of events. In the course of the only remaining century, people have been changing environments more quickly than in any similar period ever, thus biodiversity or the assortment of qualities, species, and biological systems has declined quickly. This misfortune is compounded by the deficiency of information on biodiversity particularly among individuals with a close relationship with the normal environment. Social mindfulness is one of the vital viewpoints for the preservation and manageable utilization of biodiversity. According to the Supreme Court of India, seven minutes of naturally related projects should be communicated regularly on National TV.[33] The other aspect of protection is that prior informed consent (PIC)[34]of the legal holder[35] of traditional ecological knowledge is needed to be documented as a protective or defensive measure.
[1] E.g. State of Nagaland enacted a series of Acts, Rules to conserve and protect the Biodiversity of the Nagaland viz. Nagaland Forest Act, 1968, The Nagaland Rules for the Protection of the Establishment and Control of Forest Villages, 1969, Nagaland Rules for Protection of Forest from Fire, 1961, The Nagaland Jhum Land Act, 1970 etc. [2] Supra note 1. [3] The intellectual roots of traditional ecological knowledge are in ethno-science (mainly ethnobotany) and human ecology. The field started with the documentation of lists of species used by different indigenous groups, and elaborated a science of folk taxonomies of plants and animals, and later, of other environmental features such as soils. [4] Isabel Ruiz-Mallén & Esteve Corbera, Community-Based Conservation and Traditional Ecological Knowledge: Implications for Social-Ecological Resilience, 14(4), ES,2013, -Traditional ecological knowledge has been historically instrumental in ensuring biodiversity conservation and enhancing local livelihoods, (Oct. 2020, 18, 09:12 PM), www.jstor.org/stable/26269393. [5] Robin W. Kimmerer, Traditional Ecological Knowledge Section, 4(4) BESA 312-314, 2006. [6] It can help to clarify, enhance, and even augment knowledge that is long believed to have been studied exhaustively. TEK offers an integrated system of environment and timing knowledge that adds a dimension where none has been fully examined previously. It is the Indigenous science that puts faces and names in congruence with places and events, and assists in the long-term assessment of what exactly is going on, by looking at long-held trends from the past (Oct. 2020, 22, 03:20 PM),https://blog.ucsusa.org/science-blogger/the-importance-of-traditional-ecological-knowledge-tek-when-examining-climate-change. [7] First time the tribal members (as recorded in the blog of Union of concerned Scientists) shared TEK about why the deer in the Western Oregon region were losing hair. Years prior to western scientific information finding an exotic lice species responsible for what is now termed Hair Loss Syndrome Native tribal members identified the very patterns that had been noted and passed them along through a combination of TEK and TK data. [8] Ravi Kant Mishra, IPR manage of Indigenous Knowledge in Meghalaya: A Need for a Thorough Look, 22(2), SLJIL, 69-116, 2010. [9] karl Folke, Traditional Knowledge in Social-ecological Systems, 9(3), ES (2004), (Oct. 2020, 18, 12:45 AM), https://www.jstor.org/stable/26267675. [10] Rajshree Chandra, Intellectual Property Rights: Excluding other Rights of other Peoples, 44(31), EPW, 86-93, 322, (2009). [11] Ruifei Tang & Michael C. Gavin, A Classification of Threats to Traditional Ecological Knowledge and Conservation Responses, 14(1), CS, 57-70, (2016), -For instance, it is a source of biological knowledge and ecological insights. Indigenous knowledge is important for the sustainability of difficult-to-manage ecosystems such as tropical forests. [12] Ravi Kant Mishra, Protection of Biological Diversity and Environmental concerns in India, in Naveen Kumar (eds), Forest and Environment in India: Law, History, Culture and Modern Approaches, 19-30, (Guwahati, EBH Publishers, 2015). [13] For example, the CBD provides member states with the opportunity to establish regimes that regulate foreign and domestic access to valuable genetic resources and traditional and indigenous knowledge while enabling benefit-sharing mechanisms for such access. CBD Art. 8 j, 10(c) & 18(4). [14] Ravi Kant Mishra, Access and benefit Sharing’ and the Nagoya Protocol: The Myth and Reality, CLJ, 151, (2016-17). [15] Ian F. Spellerberg, Biological Diversity, 20 (1), NZJE, 119-120, (1996), -Human activity threatens the very survival of biological entities on which its life depends. K.C. Kim and R.D. Weaver (eds.), Biodiversity and Landscape: A Paradox of Humanity, (Cambridge: U.K., Cambridge University Press, 1994). [16] Paul Wapner, On the Global Dimension of Environmental Challenges, 13(2), PLS, 173-181, (1994). [17] G. Day, The Indian as an Ecological Factor in the North- eastern Forest, 34, Ecology, 329, (1953). [18] Supra note 13. [19] Biological Diversity Act, 2002. [20] Ibid. [21] Ibid. [22] Sec. 2 (d) states that bio-survey and bio-utilization means survey or collection of species, subspecies, genes, components and extracts of biological resource for any purpose and includes characterization, inventorisation and bioassay. [23] The objective of the concept of Prior Informed Consent (PIC) is to protect the rights of TEK holders or stake holder by recognizing their bargaining power. [24] Supra note 40. [25] supra note 21, 40. [26] Ibid. [27] Ibid. [28] Supra note 40. [29] India is one of the seventeen recognized mega bio diverse countries of the world. The very existence of biodiversity is everywhere in the biosphere. It occurs both on land and in water, from high altitudes to deep ocean trenches and it includes all organisms, from microscopic bacteria to more complex plants. Although many tools and data sources have been developed, biodiversity remains difficult to measure precisely. With only 2.5% of the land area, India already accounts for 7.8% of the global recorded species. [30] Mimi E. Lam “Building Ecoliteracy with Traditional Ecological Knowledge: Do, Listen, and Learn, 12(4), FEE, 250-251, (2014). [31] Ajeet Mathur. Who Owns Traditional Knowledge? 38(42), EPW, 4471-4481, (2003). [32] George W. Wenzel, Traditional Ecological Knowledge and Inuit: Reflections on TEK Research and Ethics, 52(2), 113-124(1999), -Traditional Knowledge Associated with Genetic Resources. Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity. [33]MC Mehta v. Union of India & Othrs. AIR 1992 SC 382. [34] PIC includes the right of indigenous and local communities to oppose any access to their resources and associated traditional knowledge to be it for cultural, spiritual, social, economic or other. [35] Joe McCarter, et. al., The Challenges of Maintaining Indigenous Ecological Knowledge. 19(3), ES, (2014), (Oct. 2020, 22, 10:00 PM), www.jstor.org/stable/26269617.