BIOPROSPECTING AND ITS REGULATION BY GOVERNMENT IN FIJI

When the Government of Fiji signed the Convention on Biological Diversity in July 1993, it committed itself to developing a set of regulations to provide access for the study of its biodiversity. At about the same time, the University of the South Pacific (USP), with its main campus located in Fiji, began to set up a bioprospecting enterprise. This enterprise was launched through a grant by the Biodiversity Conservation Network (BCN), a consortium of the World Wildlife Fund, the Nature Conservancy and World Resources Institute funded by the United States Agency for International Development. This case study documents how the immediate need of the government of Fiji to establish its policy with respect to the USP bioprospecting initiative motivated it to be one of the first developing countries to draft a policy. The case study also looks at how the presence of an actual project helped to give definition to this policy.

The United Nations Conference on Environment and Development was a watershed event for environmental policy in many small developing countries, including Fiji. As part of the lead up to this conference, Fiji developed a State of the Environment Report and a National Environment Management Strategy. The latter strategy called for the establishment of a Department of Environment (DoE). The plan also noted that the environmental laws in Fiji needed a major overhaul. In 1992, the DoE was inaugurated and soon began to work on new legislation under an omnibus Sustainable Development Bill.

Another major task of the department was to coordinate activities to satisfy the requirements of the Government of Fiji as a signatory of the two conventions developed at UNCED. It was envisioned that the legislative aspects of these requirements would be included in the Sustainable Development Bill.

In late 1993, the author contacted the DoE and met with their senior scientific officer responsible for biodiversity issues. The BCN project was discussed. The officer realized that setting policy for this project would also help define government policy toward bioprospecting in general and he organized an inter-ministry task force. This task force met on two occasions with the author to discuss the dimensions of a regulatory framework that would be included in the project proposal to BCN.

From this early stage, government saw its role as regulatory one. It would not be directly involved in bioprospecting ventures but would attempt to ensure that they were carried out under the guidelines of the CBD and other guidelines of best practice such as the Manila Declaration. Experience in Cameroon had shown that direct in involvement of governments in bioprospecting was fraught with danger.

The inter-governmental working group met by themselves many more times to develop the draft legislation. This legislation was completed in May 1995 and put out for review as part of the Sustainable Development Bill in 1996. As part of the BCN project, an expert panel on bioprospecting had been established by the Rainforest Alliance to advise the project. With the permission of the government of Fiji, the draft law was distributed to this expert panel for review.

In the draft legislation, the proposed authority that has responsibility for biodiversity conservation, the Conservation and Natural Parks Authority, will control the process of granting access for persons wishing to conduct biodiversity research to ensure that: 1) No ecological, social or economic harm is caused by the biological research or exploitation; 2) Taking a biological sample does not have an undesirable impact on Fiji's biodiversity; 3) A fair return is provided for commercial exploitation of Fiji's biological resources; and 4) Prior informed consent from the resource owners is obtained before any collections can take place.

Bioprospecting is prohibited in any marine or terrestrial area without prior approval by means of a special permit. An extensive application form details area(s) of collection, organisms to be collected and benefits for the resource owners. A statement on the nature of any intellectual property rights that may be affected is also required. The procedure also demands that the applicant develop a contract with the resource owners over access terms and ensure that information regarding work on the biological samples is returned to the resource owners. The Authority vets the application after seeking advice, especially from the Fisheries Department for marine collections or the Forestry Department for terrestrial collections.

The proposed draft legislation has been justly praised for its vision in developing a sound basis for biodiversity research in Fiji in compliance with the Convention on Biological Diversity, and especially for placing this research in the overall framework of conservation in the Sustainable Development Bill. Inclusion in such an omnibus bill has the problem, however, of delaying its passage as the complex legislation undergoes extensive review, which has already exceeded eighteen months and one major revision.

This delay, however, has allowed extensive comment on the bioprospecting provisions of the bill to be made, especially by the BCN project expert panel, and these comments have been passed on to the Environment Department for consideration. Also, as the bioprospecting contracts have been developed under the BCN project in consultation with government, useful practical lessons have been learned.

Some of the suggestions for improvement in the draft law are mainly clarifications. These include suggestions to:

• Define what the law considers to be bioprospecting, and which materials and activities (for example ex-situ collections) come under the law.

• Spell out what party or parties are required to seek Access Authorization. In the BCN project, USP has been playing this role rather than SIDR or the pharmaceutical companies it is supplying. It is probably advisable to involve both collector and end user in Authority proceedings but allow either party to conclude the access agreement. All third party agreements concerning the samples should be reviewed as part of the process.

• Appoint a subcommittee of the Authority that might second a broader representation of stakeholders (domestic scientific community, local resource owners and conservation organizations). This subcommittee should vet applications rather than the Authority itself since the Authority has such broad responsibilities. This body would reflect the wider interests in the discussion of ownership and property rights.

• Put time limits on each step in the process to help promote more efficient administration and attract potential prospectors.

• Clarify issues of inter and intra-agency authority to ensure a unified and efficient process.

The Draft Bill, perhaps in response to past exploitation under the open-access paradigm, appears to require all users of biodiversity to undergo the Access process and to focus compensation on monetary returns to resource owners from patented products based on collections. Such provisions may turn out to be limiting.

To promote the growth of knowledge on local biodiversity, "pure" scientific research should be treated differently than research with clear commercial potential. Biological research and collections are mentioned separately from commercial exploitation of biological resources in the bill, but it is unclear whether all these activities are to be subjected to a uniform permitting policy. It is also possible, without a clear definition of scope to consider traditional local use of these materials as being covered by the law. To accommodate these different types of access, the scope of the law needs to be clearly defined. It could delineate a simpler process of access for "pure"scientific research, but under a material transfer agreement that offers protection against future commercial use of such collected samples.

In addition, benefits from bioprospecting can come from non-patented materials and in many forms other than cash returns so these limitations need to be removed. Indeed, one of the main provisions of the CBD is to transfer technology to source countries. In the BCN project this benefit includes an enhanced ability of USP to perform biological assays and identify active principles before licensing rather than licensing crude samples. Communities are also part of the collection and extraction process and have benefited by learning more about identification and monitoring of their biological resources.

Fair compensation and equitable distribution of bioprospecting proceeds is a vexing problem. In the BCN project, communities involved in collecting samples from their land receive the original sample fees in recognition of their assistance in the collection and husbandry of the resource. Division of royalties of future payments is left open until government policy is clarified. It is widely felt that provision of such royalties to the resource owners as provided under the Draft Law is probably inequitable.

Current thinking suggests that the setting up of a trust fund that could be accessed by all stakeholders for conservation purposes is perhaps the preferred solution, especially if efforts are made to ensure that local communities are assisted in accessing and benefit from such a fund. As bioprospecting proceeds are used by communities, the BCN project will monitor the equity of its distribution. This information will be of use to government regulators. This monitoring will further the process described in this case study -- a concrete in-country project assists government in defining its bioprospecting policy.

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