South Africa, through the Department of Environment, Forestry and Fisheries, is part of the UNDP-GEF Global ABS Project titled: “Strengthening human resources, legal framework and institutional capacities to implement the Nagoya Protocol” which aims to facilitate the implementation of the Nagoya Protocol on Access and Benefit Sharing (ABS). Under Component 1 of the project, Strengthening the legal, policy and institutional capacity to develop national ABS frameworks, a 5-day training session on ABS Contracting, specifically ABS Contract Law, with government, communities and industry representatives, is envisaged.
South Africa is actively engaged in bioprospecting activities which involve the exploration of biodiversity for valuable genetic resources that may be used for commercial purposes. The bioprospecting/biotrade sector has demonstrated the potential for significant development and growth, contributing to job creation, rural development, and the conservation of our natural resources. According to the Convention on Biological Diversity, “Access and benefit-sharing (ABS) refers to the way in which biological or genetic resources may be accessed, and how the benefits that result from their use are shared between the people or countries using the resources (users) and the people or countries that provide them (providers).”
There are many institutional frameworks, international and national, which play a critical role in assisting governments in developing their national policies, legislations and programs to ensure that access to genetic resources and associated traditional knowledge, and the sharing of benefits thereof, happen in a fair and equitable way. Chapter 6 of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004); and the Bioprospecting, Access and Benefit-Sharing Amendment Regulations (BABS Regulations) are a few examples of the foundational and compulsory frameworks and legislation that is administered by the Department. In South Africa, the principles of the Nagoya Protocol are implemented through these pieces of legislations. The BABS Regulations prescribes the notification process for the discovery phase of bioprospecting involving any indigenous genetic and biological resources and further prescribes the permit system that applies to bioprospecting activities. In addition, the BABS Regulations set out the form and content of, and requirements and criteria for benefit-sharing and material transfer agreements and the administration process of the Bioprospecting Trust Fund.
Benefit Sharing Agreements (BSA) are entered into by a permit applicant and a relevant stakeholder (eg. Resource provider, TK holder), for access to any indigenous genetic and biological resources (IGBR) and/or Traditional Knowledge associated with the aforementioned resource. The BSA is a legally binding contract that requires information about the IGBR to be accessed, information on Traditional Knowledge and related communities and the mechanisms of benefit sharing (monetary and non-monetary). Due to the complex and dynamic nature of the ABS environment in South Africa, the negotiations involved in, and the drafting of BSAs need to be a systematic process that follows due diligence. It is critical to ensure that the key stakeholders and role players in the bioprospecting/biotrade sector are sufficiently capacitated to facilitate the fair and equitable sharing of benefits that arise from the use of IGBR as well as to ensure a level of standardization on the understanding of benefit sharing and an enhanced knowledge around benefit sharing issues.
As per the approved Annual Work Plan for the year 2019 for South Africa, the body of work will require a national or international consultant to design and conduct a training session tailored to government, community and industry stakeholders, focusing on Contract Law related to Access and Benefit Sharing.