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   THE DEVELOPMENT OF BIOPROSPECTING AGREEMENTS IN FIJI

By William G. Aalbersberg, Professor of Natural Products Chemistry,
University of the South Pacific

For thousands of years our ancestors have lived off an ocean whose reefs have been and still are home to a wide range of marine life. Our affinity with the land is, therefore, not merely land-based, but literally extends beyond our shores to encompass the ocean and the reefs that surround us. The reefs are part of our vanua, our identity as a people, and it is an essential element that ensures our very survival as i taukei. Without our reefs, we are sunk in every sense of the word. As major international corporations search for supplies of coral, they look to countries like Fiji, where there is little or no protection for the resource owner, the i taukei ni qoliqoli. Their resources are slowly being depleted, and while these major corporations make millions out of coral, the i taukei receive very little compensation. Logically, they really should be some of the wealthiest people in the country. -- Prime Minister Sitiveni Rabuka, at the Launching of the Pacific Year of the Coral Reef Campaign.

Fiji possesses a rich biodiversity, and is especially known for high levels of endemism. It also has significant institutional and cultural resources to study and sustain that biodiversity. The threats to Fiji's coral reefs, forests, and other habitats are intensifying, however, and creative ways to value and conserve biodiversity are needed. One strategy is to link up local communities concerned about loss of their biological wealth with the private sector wishing to locate unique chemical compounds for medical and other purposes. In the case of Fiji, the headquarters of the University of the South Pacific (USP), the linkage is enriched by researchers seeking to understand ecosystems and sustainable use of biodiversity. As USP serves twelve Pacific Island countries, there is great potential for sharing models and lessons.

This case study describes the process of designing an equitable bioprospecting agreement and developing community based activities that included USP, pharmaceutical companies, the Fiji government, non-governmental organizations (NGOs) and local communities. It records the steps leading up to the agreement, the reaction of community members and other partners, and the follow-on activities. As few examples exist in the world today of such agreements, this case study is meant to serve as a resource for future efforts.

The first steps involved getting appropriate funding for the project. The Chemistry Department at USP had a longstanding interest in the study of medicinal plants, but were hindered by reliance on outside organizations to perform bioactivity screens and provide spectra for structure determination.

In 1995, USP applied for and received a planning grant from the Biodiversity Conservation Network (BCN).1 With funding from the BCN grant, and a close partnership with a pharmaceutical company, USP planned to expand work into the marine area and upgrade its facilities to add value to local samples before they were sent overseas. The planning grant would lead to a larger implementation grant when all the pieces were in place.

From the outset, the developers of the project saw bioprospecting as a means for furthering community development and community-based conservation as well as scientific knowledge. Due to the range of biodiversity and interest in conservation, one coastal community, Verata, and one rainforest community, Namosi, were chosen as source areas. Traditional leaders in both areas were recent graduates of USP and had expressed concerns about environmental threats: overfishing in Verata and logging and mining in Namosi.

Finding a pharmaceutical company partner was at first relatively easy. USP approached Dr Brad Carté of Smith Kline Beecham (SB) who had been collecting marine samples in Micronesia. Dr Carté's professional reputation, his interest in equitable benefits for source countries, and his emphasis on the marine environment that is so important to the Pacific region made collaboration with him and SB attractive. He responded positively to the request that SB extend its work to Fiji.

The discussions leading to the development of a bioprospecting agreement began in a virtual policy vacuum. None of the parties involved -- USP, SB and the Fiji government -- had any stated policy on bioprospecting. These institutions realized the benefits of using their involvement in the BCN project to develop such guidelines. The development of these policies was aided by a growing literature, including Biodiversity Prospecting put out by the World Resources Institute in 1993, and a number of position papers by Sarah Laird and others.

The original discussions on if and how bioprospecting could take place in Fiji were held with the Environment Department. Fortunately, a bright young scientific officer, who also happened to be from Verata, was in charge of these talks. He called together a working group from relevant government ministries that set the parameters for this particular project and eventually for bioprospecting in general in Fiji. Government ended up choosing a regulatory role to define the approval process and also to ensure that the rights of communities were protected.

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After the national government approved the project, USP and SPACHEE approached the provincial governments for native affairs with jurisdiction over Verata and Namosi. In both cases, the heads of the provincial government were also traditional leaders and had close connections with USP. Once these leaders were satisfied with the proposed activities, they arranged for someone to accompany the USP team to the villages. In Fiji, the indigenous people own the land, traditional authority is respected, and government is seen as protecting traditional rights. Thus following traditional protocols made approval for bioprospecting by the community very likely. Following protocol did not, however, forestall lively discussions of the proposed project in community meetings. People were interested in having their medicinal plants evaluated and receiving financial benefits, but linking these activities with conservation raised questions. They wondered, for example, if certain marine areas were declared tabu for gathering, would bioprospecting proceeds adequately compensate for the loss of commercial or subsistence return from the non-use of tabu sites? What timeframe would be adequate to regenerate the key species in the tabu areas? These are complex questions that biological and socioeconomic monitoring are helping to answer.

Full community support is critical because the central objective of the project is to link the process and benefits of bioprospecting to conservation. These communities were accustomed to people coming and taking plants with minimal, if any, benefits so the idea of communities receiving substantial benefits was warmly received. They were also concerned about environmental issues such as overfishing, mining and coral harvesting. The project provided an example of how benefits could be obtained through conservation rather than extraction.

The next step was the development of the formal bioprospecting agreement. Brad Carté suggested that the project team recruit Charles Zerner, leader of the Natural Rights and Resources Program at Rainforest Alliance, to advise on equity issues. Zerner in turn advocated bringing in Michael Gollin, a leading authority on bioprospecting contracts. In October 1995, USP, SB and other members of the project team met with a representative of the Fiji government and the Verata community.2< Mr Gollin acted as facilitator and the Worldwide Fund for Nature/South Pacific agreed to act as rapporteur. Mr Gollin had earlier prepared a questionnaire for stakeholders asking what they wanted from the agreement and any constraints they felt in joining it. For the meeting, he drafted an outline document based on responses to the questionnaire. The meeting was unusual in that it was held in the source country and open to a variety of stakeholder representatives.

One of the first points of discussion was whether there would be a three-way agreement between SB, USP and Verata or whether separate SB-USP and USP-Verata contracts were preferable. People concerned about conservation and community rights believe that contracts that involve the communities as equal partners are preferable as they recognize the crucial role of communities in conservation of resources, knowledge and national development. The drug companies, however, have legal constraints to only pay benefits to legally constituted bodies. This issue was not fully resolved during the meeting. The absence of any firm policy by SB and USP also created difficulties as on some issues no final stance could be given by the representatives at the meeting.

By the end of the week, the parties reached agreement on most points and participants were left with issues that needed to be resolved at a policy level. SB was to write a final draft of the agreement to be translated into Fijian for conclusive discussions with the communities. The BCN grant included funds to pay the costs of legal representation for the communities to review the contract.

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In April 1996, SB closed down their natural products discovery division. USP immediately began a search for another partner. BCN gave a six-month extension to the planning grant to accomplish this task. The project team felt that an institution that acted as a broker would most likely be able to enter an agreement on short notice, and so they contacted the Strathclyde Institute of Drug Research (SIDR) at Strathclyde University in Glasgow, Scotland. SIDR was at that time in the process of signing an agreement with a Japanese drug company to provide 5000 samples, and so they were quite keen to become a partner. Strathclyde's agreements provide 60% of all funds obtained from licensing samples to the source country. Although they retain a substantial 40%, there are several advantages to this type of arrangement:

The main disadvantage of SIDR over SB was that perhaps SB was in a position to provide a greater range of in-kind benefits such as preparation of a manual of marine biodiversity, training for USP researchers, and possible contributions to a community fund. There are no in-kind benefits from the drug company to SIDR. SIDR does offer to provide assistance in scientific work to USP, but not to communities. Another limitation to dealing with SIDR is that all contracts have to conform to the contract between SIDR and the drug companies. For example, it is considered best practice to give the source community prior informed consent on the possible commercial development of a product based on their resource. Within the SIDR framework, SIDR guarantees the right of commercial development to the drug company partners, so prior informed consent of the community is not possible.

4

SIDR has a simple pro-forma contract that was used as the basis of the USP agreement. They preferred to contract directly with USP and have USP contract to communities. As samples may eventually be provided from communities other than Verata this contract allows USP greater flexibility to work with different communities. The principles that had been established in the SB draft contract were then used to suggest changes and additions to the contract. A revised document was then distributed to stakeholders and the Rainforest Alliance reference group, a group of international experts in bioprospecting. The draft contract received extensive comments and suggestions which, wherever possible, were incorporated into the final USP/SIDR agreement.

An associated USP/Verata contract was subjected to the same process and translated into Fijian. This contract has been reviewed by a community lawyer who, partly because of her involvement, is now also the Fiji focal point for Article 23 discussions on protection of intellectual property rights (IPR) under the Convention on Biological Diversity. Except for the possibility of joint ownership of any commercial products and a recognition of their stewardship of their resources, IPR issues are not part of these contracts, as the collections are not based on traditional uses. The communities are advised that they can request that certain plants not be collected -- for example, if the collectors want an important medicinal plant and the community wants their knowledge to be rewarded.

A key feature of these contracts is that a small amount of sample is licensed through SIDR for a limited period (usually one year). This sample remains the property of the community and if not under a licensing agreement can be reclaimed by the community. These agreements set out a broad definition of sample to include derived chemicals and products. They also give Verata first right of recollection and provide for appropriately qualified people from Verata to be employed by the project.

Because USP currently covers its collection costs with the BCN grant, all royalty fees are passed on to Verata. Collection and processing fees come to about $20 per sample, while the cost of machinery used in the grinding of material and extraction comes to about $5,000, or an additional $10 per sample for 500 samples. Under the agreement, the division of royalty benefits will be set within two years. This timing allows further discussion in Fiji and the rest of the Pacific on how benefits can be most equitably shared and best used for conservation and development.

As part of the BCN project, a number of workshops and training exercises are being held using participatory techniques to assist the communities to develop resource management plans and to monitor resource use. At present these activities are funded under the BCN project but, lacking such external funds, sample fees could be used for these important purposes. A fuller discussion of these activities is found in a separate case study in this volume and in the BCN annual report for 1997.

Although this bioprospecting process is perhaps unusual in that it has been supported by outside funding, many of the lessons learned are widely applicable. Perhaps the most important lesson is that the agreements should not be confidential. This openness allows wide international consultation on whether provisions accord to best practice or not. It is very useful to have available a register such as the RA reference group, people with experience in negotiating these agreements who are willing to offer advice on draft agreements.

1 Funded by the United States Agency for International Development (USAID) under the Biodiversity Support Program, which is a consortium of the World Widelife fund, The World Resources Institute and The Nature Conservatory, BCN comprises twenty projects in Asia and the Pacific that link enterprise development with biodiversity conservation.

2 Due to US budget cuts the project had to be cut back to only one community.


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