Biodiversity

BD Act, 2002
• Conservation of biological diversity
• To respect and protect knowledge of local
communities traditional knowledge related to
biodiversity
• Sustainable use of biological resources
• Protection and rehabilitation of threatened species.
• Fair and equitable sharing of the benefits arising
out of the use of biological resources
 Important Definitions
Biological Diversity: Section 2 (b) : Biological Diversity
means the variability among living organisms from all
sources and the ecological complexes of which they are part,
and includes diversity within species or between species and
of eco-systems;
Biological Resources: Section 2 (c): Biological Resources
means plants, animals and micro-organisms or parts thereof,
their genetic material and by-products (excluding value
added products) with actual or potential use or value, but
does not include human genetic material;
 Whether coal is a biological
resource?
Biodiversity Management Committee v Western Coalfields
Ltd (NGT, 2015)

“coal, although indisputably of plant origin, does not in a fossilised

form, after millions of years being buried under the earth, retain any
genetic characteristics which can be linked to the plants, or to the
vegetation from which the coal was originally formed”
 Coal as a biological resource

On the principle of purposive construction, coal

cannot be categorised as a biological resource as
the purpose and object of the BD Act, 2002 was
to provide for conservation of plants, animals
and other organisms and their genetic material.
 Regulation of Access to Biological
Diversity
• Prior approval from NBA in case of foreign
individuals, corporations and NRIs (s 3)
• Prior approval from NBA in case of transfer of
research results to foreign individuals, corporations
and NRIs (s 4)
• Application for intellectual property rights not to be
made without approval of National Biodiversity
Authority (s 6)
• Prior intimation to SBB for Indian citizens and
companies for obtaining biological resource for
certain purposes. (s 7)
 Institutional mechanism
• NBA
– Regulation of access to biological resources
– Issue guidelines pertaining to ABS (access and benefit sharing) (s 18)
• State Biodiversity Board (SBB)
– Regulate by granting of approvals or otherwise requests for commercial
utilization or bio-survey and bio-utilization of any biological resource
by Indians (s 23)
• Biodiversity Management Committee—local level
– For the purpose of promoting conservation, sustainable use and
documentation of biological diversity (s 41)
– NBA and SBBs are to consult BMCs
– BMCs can levy fee from users of biological resources
 Benefit Sharing
In case of approal of IPR, the NBA can 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 (s 6)
Determination of equitable benefit sharing by
National Biodiversity Authority (S-21)
The National Biodiversity Authority shall while granting
approvals under section 19 or section 20 ensure that the
terms and conditions subject to which approval is granted
secures equitable sharing of benefits arising out of the use of
accessed biological resources, their by-products, innovations
and practices associated with their use and applications and
knowledge relating thereto in accordance with mutually
agreed terms and conditions between the person applying
for such approval, local bodies concerned and the benefit
claimers.
Forms of Benefit Sharing (s 21)
– Grant of joint ownership of intellectual property
rights
– Location of production, research and development
units in such areas
– Payment of monetary compensation and non-
monetary benefits to the benefit claimers
– Transfer of technology
 Key issues
When the access can be said to have taken place.
• Is it when merely the physical raw material is
obtained? or
• When a commercial utilisation occurs with the
development into drugs or industrial products
and their subsequent sale?
What could be the benefits?
Monitory and non-monitory
 Divya Pharmacy case
• 2016: a notice by the Uttarakhand Biodiversity
Board (UBB) alleging use of biological
resources without intimating the Board
• UBB asked for ABS fee.
• This was challenged by Divya Pharmacy in
this writ petition
– BS is only for foreign companies and individuals
– SBB does not have that power
 Divya Pharmacy’s contention
– Before NBA grants approval under Section 19 or under Section
20 of the Act, it has to ensure that the terms and conditions for
granting the approval are such which secure equitable sharing of
benefits arising out of the use of "Biological Resources".
– In other words, FEBS (fair and equitable benefit sharing)
would only arise if an approval is being taken under Section 19
and 20 of the Act, and in no other contingency.
– All the same, both Sections 19 & 21, are the sections meant for
only "foreign entities", who require approval from NBA in one
form or the other. These provisions do not apply in case of the
petitioner which is purely an Indian Company.
 Court’s finding
• The court used purposive interpretation: when a plain and textual interpretation
defeats the purpose of a legislation. Use of international law in purposive
interpretation (see para 72).
• “Biological resources” are the property of a nation where they are geographically
located, but these properties, in a manner of speaking, belong to the indigenous and
local communities who have conserved it through centuries (no right to exclude, but
only a right to a share of benefit).
• What is Fair and Equitable Benefit Sharing cannot be looked through the narrow
confines of the definition clause alone. The concept of FEBS (fair and equitable
benefit sharing) has to be appreciated from the broad parameters of the scheme of
the Act and the long history of the movement for conservation, together with our
international commitments in the form of international treaties to which India is a
signatory.
• Once we do that, we find that Under Section 2(f) and sub-section (4) of Section 21,
the NBA has got powers to frame regulations in order to give payment of monetary
compensation and other nonmonetary benefits to the benefit claimers as the
National Biodiversity Authority may deem fit, in form of Regulations and the State
Biodiversity Board in turn has powers and duties to collect FEBS under the
regulatory power it has under Section 7 read with Section 23 (b) of the Act.