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Assessment of Capacity Building Needs, Preparation of the Third National Report (CBD) and the Clearing House Mechanism

(The “Biodiversity Add‐on Project”)

A Management Summary and the Reports on the Assessments of the Current Legislative Framework, the Operational and Organisational Frameworks and

needs for Taxonomic Research in Jamaica

May, 2010

TABLE OF CONTENTS

CHAPTER 1 – MANAGEMENT SUMMARY 3 Table of Acronyms Used 4 Introduction 6 Background and Project Scope 7 Project Deliverables 8 Section 1 ‐ Approach and Work Done 10 Section 2 – Findings and Conclusions 11 Section 3 – Summary of Recommendations 13 Section 4 – Main Implementation Challenges and Factors 13

CHAPTER 2 – ASSESSMENT OF THE CURRENT POLICY AND LEGISLATIVE FRAMEWORK 13 Introduction 13 Section 1 – Policy 13 Section 2 – Laws 13 Section 3 ‐ Published strategies and relevant Studies 13 Section 4 ‐ Agencies involved in ABS 13 Section 5 ‐ Proposed Laws 13 Section 6 ‐ Main Findings 13 Section 7 ‐ Conclusions 13 Section 8 ‐ Implementation Considerations 13 Section 9 ‐ Recommendations 13

CHAPTER 3 – ASSESSMENT OF THE RELEVANT INTELLECTUAL PROPERTY POLICIES, LAWS, AND PROCEDURES 13

Introduction 13 Work Done 13 PART I: DEFINITIONS AND PRINCIPLES 13 PART II: CURRENT LAWS, MAIN GAPS AND SHORTCOMINGS 13 PART III: BIODIVERSITY ACCESS AND BENEFIT SHARING BEST PRACTICES 13 PART IV: CONCLUSIONS 13 PART V: MAIN CHALLENGES AND FACTORS FOR SUCCESS 13 PART VI: RECOMMENDATIONS 13

Section 1 ‐ Environmental Law Reform 13 Section 2 ‐ Intellectual Property Law Reform 13 Section 3 ‐ General Policy and Procedural Matters 13 Section 4 ‐ Community 13 Section 5 ‐ Jamaica Memory Bank 13

CLOSING REMARKS 13 CHAPTER 4 ‐ ASSESSMENT OF CAPACITY AND NEEDS FOR TAXONOMIC RESEARCH 13

Section 1 Introduction 13 Section 2 ‐ The Ideal Situation for Taxonomic Knowledge 13 Section 3 Major Findings: Resource and Capacity Assessment 13 Section 4 Conclusions from Main Findings 13 Section 5 Recommendations for Bridging the Gaps in Taxonomic Knowledge 13 Section 6 References 13

CHAPTER 5 – ASSESSMENT OF THE ORGANISATIONAL AND OPERATIONAL REQUIREMENTS 13

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Chapter 1 – Management Summary

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Table of Acronyms Used

ABS Access and Benefit Sharing (Regime) ACIJ African Caribbean Institute of Jamaica ABRS Australian Biological Resources Study ACIJ African Caribbean Institute of Jamaica AGOIRA Access to Global Online Research in Agricultural ARDI Access to Research for Development and Innovation AGRRA Atlantic and Gulf Rapid Reef Assessment ASEAN Association of South East Asian Nations BJCMNP Blue and John Crow Mountains National Park CARICOMP Caribbean Coastal Marine Productivity CBD Convention on Biological Diversity CDI Capacity Development Initiative CHM Clearing House Mechanism COP Conference of Parties CNA Competent National Authority CCDC Caribbean Coastal Data Centre CCAM Caribbean Coastal Area Management Foundation CCMS Conservation of Migratory Species of Wild Animals CITES Convention on International Trade in Endangered Species of Flora and CMS Centre for Marine Sciences CPACC Caribbean Planning for Adaptation to Climate Change CWIP Jamaica Coastal Water Quality Improvement Project DARWINET Darwin Network FAO Food and Agricultural Organization DBML Discovery Bay Marine Laboratory DLS Department of Life Sciences EFJ Environmental Foundation of Jamaica GAP Global Plan of Action GCRMN Global Coral Reef Monitoring Network GEF Global Environment Facility GTI Global Taxonomy Initiative GR Genetic Resources I3N IABIN Invasive Information Network IAS Invasive Alien Species IABIN Inter‐American Biodiversity Information Network ICBG International Cooperative Biodiversity Groups IOJ Institute of Jamaica IT IS Integrated Taxonomic Information System JA CHM Jamaica Clearing House Mechanism JBDC Jamaica Business Development Corporation JCDT Jamaica Conservation and Development Trust

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JCRMN Jamaica Coral Reef Monitoring Network JIPO Jamaica Intellectual Property Organization JMB Jamaica Memory Bank LMA Licensing and Management Authority MACC Mainstreaming Adaptation to Climate Change MAT Mutually Agreed Terms MOAF Ministry of Agriculture and Fisheries MOT Ministry of Tourism MTA Material Transfer Agreement MCZ Museum of Comparative Zoology Min. of Ag. Ministry of Agriculture and Fisheries NBSAP National Biodiversity Strategy and Action Plan NCSA National Capacity Self Assessment Initiative NCU Northern Caribbean University NEGAR National Ecological Gap Assessment Report NEPA National Environment and Planning Agency NHMJ Natural History Museum of Jamaica NGO’s Non‐Government Organizations NISM National Information Systems Network NLBIF Netherlands Biodiversity Information Facility NOAA National Oceanographic and Atmospheric Administration NRCA Natural Resources Conservation Authority OECS Organization of Eastern Caribbean States PEET Partnerships for Enhancing Expertise in Taxonomy PGRFA Plant Genetic Resources for Food and Agriculture PIC Prior Informed Consent PQD Plant Quarantine Division RML Port Royal Marine Laboratory SPAW Protocol concerning Specially Protected Areas and Wildlife SRC Scientific Research Council TCE Traditional Cultural Expressions TK Traditional Knowledge TNC the Nature Conservancy UK United Kingdom UNEP United Nations Environment Programme (UNEP) UPOV International Convention for the Protection of New Plant Varieties UWI University of the West Indies WBD World Biodiversity Database WIPO World Intellectual Property Organization

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Introduction

Jamaica is one of the 191 countries which are parties to the Convention on Biological Diversity which entered into force in December 1993. .Jamaica formally ratified the Convention in January 1995. The main objectives of the Convention are the:

Conservation of biological resources,

Sustainable use of its components, and

Fair and equitable sharing of benefits arising from its use.

To comply with its international obligations under this Convention, the Jamaican Government developed a National Biodiversity Strategy and Action Plan. This was accepted as government policy in 2003 when it was approved by Parliament and became an official White Paper. This policy’s role is to guide and facilitate the process of implementation of Jamaica’s international obligations. Jamaica is also a member of the World Intellectual Property Organisation and the Government, through the Ministry of Agriculture, has begun drafting legislation for the International Convention for the Protection of New Plants Varieties. The loss of traditional knowledge in Jamaica is rapidly increasing. Information on the use of plants and animals, particularly for medicinal purposes, has been passed down through several generations. This knowledge potentially provides an important indication for researchers in the identification of prospective genetic resources of economic value. In common with many other countries, the natural environment and biological diversity is also under threat from activities such as mining, poor farming practices and population growth occasioning formal and informal human settlements many with poor sanitation. The project was agreed and approved to implement selected items from the National Strategy and to address the improvements required in the legal and institutional arrangements to improve the management of access and sharing of benefits as well as the taxonomic research required for supporting biodiversity management. The Project has been implemented through the National Environment and Planning Agency in collaboration with the Institute of Jamaica. Funding and support for this project has been committed by the Government of Jamaica and the United Nations Development Program (UNDP) in Jamaica. This Chapter of the document sets out a management summary for the assessments which have been carried out and the recommendations arising from these. The detailed reports then follow.

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Background and Project Scope There are no legal instruments or policy in Jamaica to protect or preserve biodiversity and the related indigenous knowledge. While the current legislation creates a basic framework for the conservation of biodiversity, it does not comprehensively protect ecosystems, species, or genetic diversity. Jamaica is in the process of reviewing or developing legislation or regulations that are relevant to the conservation of biodiversity and sustainable use of biological resources. There is general agreement that the available resources are insufficient to meet current needs for the taxonomic research required to support biodiversity management. The objective of the project was to evaluate existing needs and to propose a program to build legal, institutional and human resource capacity for conservation and sustainable use of Jamaica’s biodiversity. The project components which are covered by this report relate to:

1. Preserving and protecting indigenous knowledge and resources, with two sub‐components, as follows:

1.1. Assessing capacity needs regarding access to genetic resources and the associated benefit sharing; and

1.2. Assessing capacity needs in the areas of preservation of biodiversity related indigenous knowledge and the associated benefit sharing.

2. Conducting initial assessments and identifying monitoring programs, including improvements in the local capacity for taxonomy which will be needed for Jamaican biodiversity programme support.

Other aspects of the total project, which have been separately addressed, and therefore not addressed in this report include:

1. Improving the usage of the existing Clearing‐House Mechanism and sensitising the public to their role in biodiversity conservation and development; and

2. Completing of the Third National Report National Report to the Convention on Biological Diversity, and preparing the funding request for the Fourth National Report.

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Project Deliverables The work was broken down into four components, each of which was carried out as a separate assessment, as follows:

1. A review of the current policy and legislative framework – with a focus on compliance with the provisions of the Convection on Biological Diversity;

2. Examination of policy, legal and regulatory assessments relating to intellectual property, access and benefit sharing;

3. Organisational and operational aspects of the requirements for protecting genetic materials and traditional knowledge; and

4. Institutional and individual capacity and needs in relation to the improved taxonomic knowledge of Jamaica’s flora and fauna.

Four detailed reports and separate sets of recommendations for each component have been prepared. Each of the four full reports for these areas have been included as the separate Chapters which follow this management summary. The reports for first three of the above components covered the following:

1. The policy, legislation and regulations required to take proper account of the obligations relating to compliance with the convention on biodiversity;

2. the policy, legal and regulatory assessments relating to intellectual property and the need for copyright and patent improvements; and

3. The organisational and operational aspects of biodiversity management and the requirements for new or revised institutional arrangements, practices and human resource needs for operations, management, and monitoring.

The work carried out included assessments of the current situation and went on to examine:

1. Alternatives for the way forward for necessary improvements in biodiversity related policy, legislation, regulations and or organisational arrangements;

2. Best practices for local implementation, based on current international standards or procedures;

3. Recommendations regarding required new or amended legislation;

4. Recommendations on the required new or modified organisational and operational arrangements;

5. Definition of the main challenges and factors for success; and

6. High level implementation plans setting out the major work elements to be completed.

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The fourth component related to an assessment of the strengths and weaknesses with respect to taxonomy. This involved undertaking an assessment of the current situation. The review went on to define the future institutional and individual capacity in relation to the required taxonomic knowledge of Jamaica’s flora and fauna in order to support biodiversity management. The following sections of this management summary set out, in turn the following:

Section 1 ‐ The approach taken and work done, including consultations and oversight arrangements

Section 2 ‐ A summary of the main findings and conclusions (separately set out for the legal components, definition of taxonomic support , and organisational assessment)

Section 3 ‐ A summary of the main recommendations (separately set out for the legal components, definition of taxonomic support , and organisational assessment)

Section 4 – The main implementation challenges and factors critical for success

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Section 1 ‐ Approach and Work Done

The work done which provided the basis for the findings and recommendations in the reports included:

Reviews of documentation, policies and procedure;

Development of structured questionnaires which were used for extensive interview programs with stakeholders;

Three public consultations;

Visits to herbaria, laboratories, the Clearing House Mechanism and the Jamaica Memory‐Bank;

Examination of international comparative laws and Organisational arrangements from selected best practice jurisdictions; and

Attendance at conferences and seminars.

Pertinent documents and other literature which needed to be reviewed included the Convention on Biological Diversity and associated documents, the National Biodiversity Strategy and Action Plan, and the National Ecological Gap Assessment Report, among others. The legal reviews included examination of all current laws and regulations; as well as examinations of draft policy and legislation where this was available. A questionnaire was developed for each of the review areas which covered all the elements of the terms of reference. These questionnaires were sent to all the stakeholders identified in advance of meetings and discussions and then used as aides memoiré. The majority of the interviews were face to face with some being done by telephone. In the event that several team members needed information, the interviews were combined or administered by one individual. The questionnaires used have been either described in the four individual reports or included as attachments. Interviews were conducted with more than 50 individuals and approximately 25 organisations were consulted. Three public consultations were held in Kingston, Ocho Rios and Montego Bay. These were attended by 57 individuals from both public and private organisations and representatives of local communities of interest including Maroons as well as farmers. Investigations were carried out in relation to international best practice in legal practice, organisational and institutional arrangements and the new technologies being use in taxonomy and conservation research. The laws and/or institutional arrangements in Australia, Costa Rica, India, Peru, the Philippines and South Africa were examined. Relevant best practices have been discussed, considered and where appropriate incorporated into the recommendations.

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The oversight of the project was provided by the National Environment and Planning Agency in collaboration with the Institute of Jamaica. A National Steering Committee was also established with the responsibility to:

Oversee the management of the project budget;

Review and approve the work plan and any modifications that may subsequently be made;

Review and approve all the major deliverables; and

Review the Project Coordinator’s reports, monitor milestones and ensure timeliness of project deliverables.

The National Steering Committee included representatives from the National Environment and Planning Agency, the Institute of Jamaica, and the United Nations Development Programme. The membership is noted below. Name Entity Winsome Townsend (Chairman) NEPA Lilyclaire Bellamy Jamaica Intellectual Property Office Nicole Brown United Nations Development Programme Tracy Commock IOJ Natural History Damian Cox Access to Information Unit, OPM Marcia Creary UWI Faculty of Applied Science Suzanne Davis IOJ Clearing House Mechanism Elaine Fisher CITES Scientific Authority Marilyn Headley CEO MOAF – Forestry Department Margaret Jones Williams United Nations Development Programme Tricia Ann McLean Spatial Data Management Division ‐ MoAF Susan Otuokon Jamaica Conservation Development Trust Commander Richard Russell, CEO MOAF Fisheries Division Sheries Simpson NEPA PP& M Branch Jerome Smith OPM, Environmental Management Division Yvette Strong NEPA ‐ Conservation & Protection Sub‐Division Delores Wade Planning Institute of Jamaica

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Section 2 – Findings and Conclusions THE LEGAL FRAMEWORK POLICY REGIME ‐ FINDINGS The Government of Jamaica has indicated its intention to fully implement the provisions of the Convention on Biological Diversity, including implementing the legislative changes required to fulfil the implicit obligations. Unfortunately, the adoption of the National Biodiversity Strategy and Action Plan as a national policy has not led to the coordination of a systematic approach to the development of new legislative or organisational frameworks. There are very few finalised Government policies (or White Papers) to provide a current and clear context for required improvements in the protection of biodiversity, regulation of access to Jamaica’s indigenous and genetic resources, and to provide for appropriate benefit‐sharing. There are only two policies (namely the Protected Areas Policy and the Forest Policy) that directly address the protection of biodiversity that may assist in providing a practical context for the establishment of an access and benefit sharing regime. Existing policies set out a framework under which environmental management must be pursued or seek to promote the conservation and sustainable use of specific resources. These include the Jamaica National Environmental Action Plan, The Jamaica National Land use Policy, Management and recovery plans for endangered species Watershed Policy, and the Ocean and the Coastal Zone Management Policy. Many of the most important policies addressing scientific research and biotechnology are in draft form. These include the Biotechnology Policy for Economic and Social Development (Draft); the Science and Technology Policy 2006 (Draft), and the Biosafety Policy (Draft) 2009. The development of White Papers in the area of scientific research and transfer of technology must be allocated a high priority in order to ensure the required clarity in policy positions and designation of roles and responsibilities of various agencies. There are divergent views on the potential scope of Biodiversity legislation and regulations – including access, benefit sharing, rights and ownership and appropriate protection of ex‐situ, research and preserved materials. There is no current avenue for stakeholders to share these views. A policy is needed on the appropriate way forward for Jamaica. The major challenge is to ensure harmonization of an approach to implement both international agreements and the time to create the necessary legislation that ensures adoption of all obligations within a comprehensive law. Much traditional knowledge exists for the different uses and properties of local plant and animal resources. There is no standard definition of what traditional knowledge should include. If this knowledge is not preserved and access regulated it might be lost or may enter the public domain, which could diminish its value. Policy obligations to protect and preserve this traditional knowledge as well as national genetic resources have not been addressed in a

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systematic manner. Implementation must also ensure equitable access and establishment of appropriate benefit sharing arrangements. THE LAWS FINDINGS The main Acts which consider the environment, biodiversity or which relate to preservation, access and benefits are summarised below. These laws were enacted for the most part prior to the Convention on Biological Diversity and they are generally insufficient to comply with the third objective of the Convention, namely, “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”. The Natural Resources Conservation Authority Act, 1991 created The Natural Resources Conservation Authority (NRCA) as a statutory authority. It gave the new authority a mandate under four statutes to effectively manage the physical environment of Jamaica. It was Jamaica’s first environmental framework Law. It is obvious from the extent of powers given to the NRCA that it was envisioned to be the lead government agency to regulate the environment. However, at the present time the Agency is primarily concerned with harm to the environment and public health, not rights in resources. The NRCA Act has a good foundation of a permit scheme to regulate access but not benefit sharing. The Wild Life Protection Act, 1945 provides for the designation of animal species to be protected by law, and makes it a criminal offence for any person to be in possession of any protected animal. The Act does not mention biodiversity, has no provisions requiring benefit sharing and does not protect any plant species. It does not cover bio‐chemicals or derivatives, synthesized products or specifically regulate ex‐situ sources of genetic resources. The Beach Control Act, 1956 regulates rights to the foreshore and the floor of the sea in Jamaican waters and governs commercial and recreational activities; the control and management of development on the beach through licensing provisions and the protection of declared areas under the Act. Three protected area orders have been declared in Montego Bay, Ocho Rios and Port Royal. It does not appropriately address the larger issues of proper management of the coastal zone and marine resources. The provisions which regulate the licence scheme for access to and use of the foreshore and sea floor are very good and useful towards an appropriate access regime. The Act does not include any benefit sharing provisions. The Endangered Species (Conservation, Protection, and Regulation of Trade) Act, 2000 provides for the conservation, protection and regulation of trade in endangered species from Jamaica. It was prepared to fulfil obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Although useful regarding its use of permits and Certificates of Origin, it only regulates access to endangered species and does not provide for either benefit sharing or for effective consultation with and prior informed consent of indigenous and local communities.

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The Forest Act, 1996 provides a broad mandate for the Forestry Department, recognizing the importance of preserving forests intact for biodiversity, watershed protection and eco‐tourism. The Forest Act is the only piece of legislation in Jamaica that includes the concept of ‘biodiversity’. The Act and Regulations are more modern and more advanced than most of the other environmental laws in Jamaica in terms of regulating access and ensuring community participation in environmental management. It therefore provides a useful model to use in the development of a suitable regime to regulate access to genetic resources and traditional knowledge. However, the scope of protection of the Act and Regulations is limited in that it they only regulate access to forest resources in designated areas (forest reserves, protected areas, forest management areas and forest estates). The Act and Regulations do not require benefit sharing. While the stipulated establishment of local forest management committees is a good move towards community participation in environmental management, it falls short of the internationally accepted requirements for local community participation and prior informed consent. The National Parks Regulations provide a good foundation of a permit scheme to regulate access but not benefit sharing. The Regulations apply only to the one National Park in the Blue and John Crow Mountains. The Fishing Industry Act, 1975 regulates the taking and catching of “fish” including “shell fish, crustaceans, and marine animal life”. It simply provides for a mechanism for a licence to catch fish. There are no specific provisions that address the collection and conduct of research on fish species. The Act and Regulations are not capable of providing any satisfactory regulation of access and/or benefit sharing, as it is limited in scope to sanctuaries, licenses, quotas and fishing seasons. The Act has no provisions relating to benefit sharing. The Jamaica National Heritage Trust Act, 1985 creates the chief agency with responsibility to protect Jamaica’s designated national heritage. The Trust can designate any place name, thing or any species of animal or plant life or any place or object as a national heritage. The Act has regulation of access but limited objective of preventing disrepair. There is no regulation of benefit sharing, significant overlaps exist with other laws and enforcement is weak. The Scientific Research Council Act, 1988 provides a mandate for the Council to encourage the application of the results of research to the exploitation and development of the resources of the Island. The Institute of Jamaica Act, 1978 requires the Organisation to research, study, and promote the encouragement of science, history and the creation of museums. It currently maintains and displays Jamaica’s flora and fauna collections, acts as a storehouse for Jamaica’s natural heritage, and associated reference works. It disseminates scientific knowledge of Jamaican flora and fauna, promotes the conservation of the Jamaican natural environment.

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The Crown Property Vesting Act, 1960 simply provides for the ownership of Crown property. The National Land Agency is given the jurisdiction to manage national lands under Crown ownership. The Town and Country Planning Act gives general power to local authorities to regulate prescribed areas and is therefore inadequate by itself to regulate access and benefit sharing to genetic resources. THE LAWS CONCLUSIONS Jamaica’s current environmental legislation provides a basic framework for the conservation and sustainable use of biodiversity. There are at least 52 pieces of legislation which have aspects that directly relate to the management of the environment. However, very few of these statutes deal comprehensively with the protection, conservation and sustainable use of biodiversity, as their focus is primarily Sectoral. Rather, there are fragmented pieces of environmental legislation in Jamaica governing Sectoral matters including hunting, trade in endangered species, and rules governing protected areas, forests and fisheries management. There are current proposals to revise the NRCA Act, the Forest Act, and the Fishing Industry Act. Drafting instructions have been prepared for the amendment of the Wild Life Protection Act, and a new Fisheries Bill has been developed. None of these statutes provide a framework for defining terms in relation to granting access, the agreement of mutually agreed terms, or the sharing of benefits. These largely sectoral environmental laws define a regime for the collection of some genetic resources in‐situ by way of collection permits under protected area and forest regulations and the grant of exemptions from protected status of certain wildlife by the Minister under the Wild Life Protection Act. There are currently no specific legal provisions that create an access and benefit‐sharing regime that complies with the requirements of the Convention on Biological Diversity. Instead, Sectoral environmental laws have been reviewed and new proposals for reform of existing legislation have been concluded in a piecemeal manner to satisfy separate government agency mandates and priorities. National legislation is needed and must be structured so as to define clear and appropriate roles and functions for governmental institutions, private institutions, and private individuals which can, together, enable Jamaica to achieve the goals of the Convention on Biological Diversity. Like the environmental laws, the intellectual property laws in Jamaica are to be found in separate, individual pieces of legislation. This approach can be operationally effective if administration of the several laws is undertaken by a single agency or a few well co‐ordinated agencies. This is the case in relation to the various intellectual property laws – which are all administered by one agency (namely the Jamaica Intellectual Property Office). This central focus stands in major contrast to the administration of environmental laws. By contrast, the many more environmental laws are administered by a number of agencies,

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without a strong central coordination. This has resulted in the duplications, overlaps and gaps in administration which have been noted. It will therefore be far easier to amend the intellectual property laws, as well as to implement those amended laws, than will be the case with the environmental laws. The main gaps and shortcomings in the intellectual property and related laws in Jamaica are significant:

1. There are no provisions requiring benefit sharing;

2. There is no protection for traditional knowledge;

3. There has been no attempt to enact any policies, laws or procedures to regulate the acquisition of intellectual property rights in relation to genetic resources and/or traditional knowledge; and

4. Without appropriate intellectual property regulation, genetic resources and traditional knowledge remain vulnerable and unprotected against bio‐prospectors and others who for many years have conducted unregulated research in Jamaica.

The Convention on Biological Diversity does not require intellectual property laws to be amended to specifically take into account new environmental concerns. However the Convention does require our environmental law(s) to specifically address access and benefit sharing, both of which, especially the latter, require amendments to intellectual property law. Just as the world seeks new science from traditional practices, so is the world taking renewed interest in all aspects of the cultures and traditions of such communities. Jamaica is attracting ever‐increasing interest culturally. A significant and undeniable element in Jamaica's tourism product is that rich, African‐retentive culture embodied and maintained through generations in local communities. These communities have a vested interest in maintaining and conserving the environment on which they rely for their daily livelihoods; but their traditional knowledge is often invaluable to science and research in plant genetics and natural product development. The silence of the intellectual property laws regarding indigenous and local communities needs to be quickly reviewed and amended. Not only are these communities the key to environmental sustainability and viability, but many of these communities are increasingly demanding recognition of and protection for their cultural rights. Enhancing intellectual property laws can be a key element in protecting local resources and preventing exploitation without any associated national benefits. There is therefore much benefit to be gained by the communities and by Jamaica with the enactment of appropriate laws to recognise the rights of these communities to their traditional lands, genetic resources and traditional knowledge. There are several approaches that may be adopted in deciding how best for Jamaica to enact and implement the legal frameworks required by the Convention on Biological Diversity. As has been done in some countries, it may be that rather than amending each environmental and related law to accord with the Convention, a new law such as a Biodiversity Act should be enacted, which can address the rights and obligations under the Convention in a comprehensive manner.

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From consultations and interviews with stakeholders there appears to be no consensus on the optimal approach. There are a number of different challenges identified in reaching agreement and defining an approach:

Current laws on natural resource management are often not well written, difficult to understand, and completed without appropriate technical input from the best scientists in the field in Jamaica.

There is both endorsement and disapproval for the approach of comprehensive implementation of International Agreements. There is recognition that this is probably the best approach for a small island jurisdiction committed to implementation of international agreements which have the same aims. Yet some interviewees expressed the view that this creates a too broad, and therefore perhaps unmanageable approach to implement all obligations under one law. This concern is due primarily to an assessment of the lack of capacity of current governmental institutions.

There was reluctance to consider changing the current approach being utilized which was defined as amending an existing framework or other legislation through a single law or through more than one legislative enactment. Interviewees however recognized that harmonization of laws would be necessary no matter which option is taken.

There were concerns expressed that there are a number of synergies with the Convention on Biological Diversity and other Rio agreements namely the Conventions associated with Climate Change, and Desertification and that there should be an approach to design and implement a legislative framework that addresses the Rio Conventions together as Multilateral Environmental Agreements.

Without a facility to engage key Ministries and Agencies like the Forestry Department and Fisheries Division, a defined process does not exist for developing comprehensive legislation that requires a multi‐Sectoral approach. An effective “national biodiversity committee” will need to be in place in order to define the approach and assist with drafting instructions.

The inertia in the legislative development process was often cited and the process of approval of drafting instructions and developing a Bill was described as “arduous”.

There is no focal point for all Convention on Biological Diversity related processes. There is no coordination of representation at the international level that leads to informed national decision‐making process in the development of legislation.

There are several international best practice examples of how to legislate and implement the provisions of the Convention, so as to adequately regulate access and benefit sharing in respect of genetic resources and traditional knowledge.

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TAXONOMIC RESEARCH FINDINGS Jamaica has a rich biodiversity and the high rate of endemism (ranked 5th in the world) which is a characteristic of many islands. The need for effective and coordinated approaches to taxonomic research is consequently significant and provides a very important foundation for all biodiversity assessments or conservation planning. The need for taxonomic knowledge in Jamaica has been highlighted in the National Biodiversity Strategy and Action Plan as one of the major gaps and challenges affecting the conservation and sustainable use of Jamaica’s biodiversity. There are important botanical and zoological collections located in the Natural History Museum of the Institute of Jamaica. The Herbarium is one of the largest in the region, with over 130,000 specimens covering the major plant groups in Jamaica. The zoological collections comprise approximately 110,000 specimens. There is a programme to digitise the botanical collections. The Natural History Museum is closely involved with the Convention on Biological Diversity as the host of the Jamaica Clearing‐House Mechanism ‐ the island’s biodiversity information network. This Mechanism has links with other taxonomic databases which provide information on species present in many countries; and hosts the local database for invasive alien species through the Inter‐American Biodiversity Information Network. The Department of Life Sciences (of the University of the West Indies at Mona) represents the section of the University dedicated to the biological sciences. The Department covers areas of botanical and zoological studies. The main repository of floral taxonomic information in the Department is the Plant Herbarium with over 35,000 specimens. There are two marine laboratories that are under the Department, the Discovery Bay Marine Laboratory and Field Station and the Port Royal Marine Laboratory. The main repository for marine taxonomic information within the CMS is the Caribbean Coastal Data Centre which is located on the Mona Campus and serves as the main data centre for the Centre for Marine Sciences. It provides data archival support to various national and regional marine monitoring programs, such as Global Coral Reef Monitoring Network and the Jamaica Coral Reef Monitoring Network. The Department of Life Sciences maintains particularly active taxonomic research in the areas of marine flora and fauna. Work is also being carried out in terrestrial Pathology, Nematology, and Entomology. The National Environment and Planning Agency (NEPA) generates small amounts of taxonomic information. However it has a heavy demand for taxonomic information to carry out its functions. NEPA does not keep taxonomic specimens, but keeps species distribution data which are usually geo‐referenced.

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The Forestry Department generates taxonomic information on a limited and ad‐hoc basis. There is not a dedicated taxonomic research programme in place at the Forestry Department. There is heavy reliance on the resources of the Institute and the UWI Herbaria for support. The Fisheries Division’s focus is on commercial species, and marine taxonomic research outside of these commercial species is not an area of focus for the division. Fish surveys are carried out at 216 landing sites. The Nature Conservancy is a non‐profit US based environmental non‐governmental organization and has the reputation of being the largest such organization in the world. The Jamaica Programme focuses on projects in all three eco‐regions, terrestrial, freshwater and marine Since its inception in 1987, the Jamaica Conservation Development Trust has been a leading environmental NGO in Jamaica. The focus of its work has been and continues to be the conservation of the Blue and John Crow Mountains National Park. The Trust has conducted research such as bird surveys, and has facilitated and participated in floral and faunal research within the park. The active Research Prospectus shows the linkages between taxonomy and conservation, and also demonstrates the involvement of communities within the Park in conservation and research. Though it is mainly focussed on management strategies for conservation, the Trust carries out early detection and response to invasive alien plants, larval food preservation for butterflies, avifuanal surveys, park wildlife inventories, and lower plant and entomological surveys. The Trust carries out some of this taxonomic research, and collaborates with the University of the West Indies, Forestry Department and other agencies in meeting the goals of the Research Prospectus. TAXONOMIC RESEARCH CONCLUSIONS There is no central coordination or clearing house for taxonomic work being planned or after it is completed. Without such a Coordinating Body, the natural result has been overlap in the geographical area and the scope of work of these entities, and neglect of others. This fact underscores the importance of coordination of the programmes of work. Generation and management of taxonomic records are essential for all scientific studies of the environment or biodiversity and provide the basis for justification of any biodiversity conservation programmes. These records may take the form of actual specimens, species lists or digitised specimen records with the associated taxonomic classifications for each record. A critical step in this process is the accessioning of these records using the correct taxonomic characteristics of the specimen which will avoid mistakes in future identification of species. The coordination of specimen collections and subsequent accession of these specimens is important to ensure adequate representation of the natural biodiversity of Jamaica within these collections. Collection programmes in Jamaica require coordination with respect to geographical areas as well as taxonomic groups. Such programmes should be firmly

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entrenched into the work programmes of these entities and must be accompanied by the requisite budgetary allocations, field resources and staff. This is the only way to enable consistent collections and taxonomic research in Jamaica, rather than be confined to the time frame or scope of a particular project, donor or interested external party. The research agenda for any entity in Jamaica should be focussed on meeting the needs of the country. Therefore, the agenda in taxonomic research should be driven by gaps in taxonomic knowledge as they pertain to biodiversity conservation. It is clear from the assessments done that some areas in Jamaica are not given adequate attention. The unplanned approach results in some areas being studied in far more detail and with greater frequency than other areas. A mechanism of regular dialogue is required to guide the research agendas as well as to inform on the areas of research. Research programmes should be able to demonstrate relevance to biodiversity conservation in Jamaica. In the recently concluded National Ecological Gap Assessment for the Protected Areas System Master Plan, the lack of taxonomic data formed a limiting factor in the assessment. Also, some areas of Jamaica were in significant need of better biodiversity information. It is clearly necessary to have a national body to coordinate the information management programme. The development of comprehensive and accessible collections of taxonomic records is needed to adequately support research and conservation of Jamaican biodiversity. These collections are required to be digitised and accessible on a web‐based portal. A policy for access to taxonomic records and information is required to ensure security of specimens as well as protect sensitive information that may affect conservation of certain species or ecosystems. The following represents a summary of the major gaps identified.

Human capacity at the Natural History Museum is limited. Persons are not trained specifically for a taxonomic area, but are required to be knowledgeable across all taxa in order to serve the country’s needs. Marine Collections are the most limited at the Natural History Museum as there is the absence of a marine biologist on staff; ongoing collections are therefore biased towards the terrestrial environment. There is currently no taxonomic research project focussed on the marine or freshwater environments, and this is primarily a reflection of the training and expertise of the current staff.

The Jamaica Clearing House Mechanism’s capacity to house comprehensive statistics is limited to lists, and features such as geo‐referenced distribution data is not available. Information flow into the Clearing House is limited, and persons have to be urged to contribute data. This is reflected in the limited representation of taxa.

The Research Agenda for the Natural History Museum is mainly set internally, underscoring the need for increased collaboration and coordination of taxonomic research. The geographic range of taxonomic research by the Natural History Museum is limited though the responsibility given to the Museum is island wide. Lack of resources for travel and shortage of trained persons appear to be the main limitations.

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Training in Molecular Systematics, Marine Flora and Fauna, Phylogeny and Lower Plants required for existing researchers in Natural History Museum, or persons with these skills added to the current staff cadre.

Taxonomic Research Programme for the University Herbarium is absent and there are no Taxonomists at the facility. Only one staff member is assigned to the herbarium. Staff members need training in lower plants, grasses, ferns as well as in performing effective desktop research.

Mangrove biota are reasonably well known through work done mainly at the Port Royal Mangroves out of the Port Royal Marine Laboratory. Mangrove ascidians have been extensively studied and documented especially from the Port Royal mangroves and Bryozoans in Kingston Harbour have been studied in depth. Phytoplankton and Zooplankton taxonomy is perhaps the area that is mostly studied in the University Department of Life Sciences. Hard‐bottom marine fauna, such as coral and algae, are also well studied and understood. Taxonomic work on sponges has been done on mangrove sponges. However, reef sponges and Nudibranchs and Reef bryozoans are poorly known. Other gaps in marine taxonomy include benthic macro‐invertebrate infauna and jellyfishes.

The marine bony fishes, especially the commercially important groups such as snappers, parrotfishes, acanthurids, groupers, jacks and triggerfishes are well understood. However the freshwater macro invertebrates require more attention.

With respect to gaps in free‐living nematodes in the soil, very little is known about their taxonomy and soil fungi are not adequately described. Training is required in molecular taxonomy of fungi and nematodes to complement the limited morphological taxonomic expertise.

Some of the entomological taxonomic groups which have been under‐studied in Jamaica include Pyralidae (snout moths), Nocturidae, Caribidae (beetles), Pseudococcidae (mealy bugs) and the Homopterans. Many of these are pest species, and very little is currently known about their taxonomy.

At NEPA, a substantial amount of species information is embedded in environmental assessment submitted to the Agency. This information is not however in a readily usable form, and validation of the taxonomic data is required. NEPA requires in‐house human capacity in plant taxonomy, freshwater taxonomy and increased technical capacity in several areas of taxonomy which include herbs and grasses, freshwater species, marine benthic macro‐invertebrate infauna, ichtyoplankton and marine sponges.

The Forestry Department’s field staff lack knowledge and need training in plant identification, to include not only trees, but also shrubs and lower plants. The Forestry Department does not have reference collections and relies substantially on the University and Institute of Jamaica Natural History Museum Herbaria. There is however an intention to establish a small reference collection within the Department.

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The Fisheries Division does not focus on taxonomic research in the marine environment. Focus is on management of the fish stocks based on data collected on landings. The Fisheries Information System at the Fisheries Department collects inadequate data to produce meaningful stock assessment to guide management of the fishable resources. Human, technical and infrastructure gaps exist and these hinder the collection and provision of useful information.

The Nature Conservancy is focussed currently on management of the marine environment mainly. There is some focus on the terrestrial and freshwater environments, but this again is limited to mainly protected area management and community participation in conservation.

The Jamaica Conservation Development Trust’s research programme is active and covers some areas of taxonomy in the Blue and John Crow Mountains National Park. These include invasive alien plants and animals, freshwater invertebrates, avifauna, tree species, and insects. There are programs to propagate food plants for the giant swallowtail and others to remove invasive plants.

There is no nominated focal point from Jamaica for the Global Taxonomy Initiative. This is required under the Convention on Biological Diversity.

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OPERATIONAL AND ORGANISATIONAL ASPECTS FINDINGS There are a number of public sector agencies as well NGOS, Trusts and community organisations which are quite heavily involved in biodiversity conservation. The main public sector entities directly involved in biodiversity management are:

The National Environment and Planning Agency;

The Environmental Management Division of the Office of the Prime Minister;

Institute of Jamaica (Including the Natural History Museum, Jamaica Clearing House Mechanism, and the Jamaica Memory Bank);

The Ministry of Agriculture and Fisheries (including the Fisheries Department, Forestry Department and the Bodles Research Station);

The Scientific Research Council; and

The Jamaica Intellectual Property Office.

Other institutions include a number of Departments at the University of the West Indies and a number of NGOs including the Jamaica Conservation Development Trust, The Nature Conservancy, the Cockpit Country and Northern Jamaica Conservation groups and the management of marine parks and sanctuaries. There are also active and organised Maroon and rural Farming Communities. The Environmental Management Division of the Office of the Prime Minister has responsibility for the Environment and has overall responsibility for the implementation of designated international environmental conventions in Jamaica including the Convention on Biological Diversity, for which it is the focal point. However, it is The National Environment and Planning Agency (NEPA) that has been the lead agency in many aspects of biodiversity management and which, from a historical perspective, has the overwhelming responsibility and involvement. NEPA was created to merge planning and environmental regulatory development functions so as to ensure orderly development. The Ministry of Agriculture and Fisheries prepares and implements agricultural policy in Jamaica. It has operational responsibility over the Fisheries Division and the Forestry Department (both of which are in the final stages of transitioning to Executive Agency status). The mission of the Ministry is to advance the development of the agricultural sector and the sustainable management of resources. It is also responsible for the public botanical gardens. The Forestry Department has jurisdiction over Forest Reserves, Forest Estates, Protected Areas and Forest Management Areas within Jamaica. The Department’s mission is to manage, protect and conserve the country’s forest resources, in accordance with national environment policies, for the benefit of present and future generations. This jurisdiction is critical for the conservation of Jamaica’s biodiversity. Jamaica has aproximately 200 parcels of Crown Lands and gazetted forest reserves, covering almost 10% of the nation’s land area.

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The Fisheries Division is responsible for monitoring and regulating the fishing industry in Jamaica. The Fisheries division grants licences for the conduct of fishing, the registration of boats and the designation of fish sanctuaries. Open and closed seasons for the catching of designated species are also regulated. The Jamaica National Heritage Trust mandate is to protect both natural and cultural heritage of Jamaica. This includes ‘species of plant and animal life’. Their current interest relates to limited cases where a species is declared as a protected national heritage. The National Land Agency is responsible for land in Jamaica owned on behalf of the Crown. The mission of the Agency includes ensuring the optimal use of government owned lands. The Scientific Research Council is Jamaica’s principal government agency responsible for the fostering and coordination of scientific research and the promotion of its application. There is a substantive role for the Council to coordinate the conduct of scientific research in Jamaica. The extent to which the Council has to coordinate scientific research in relation to natural products, the conduct of bioprospecting, and the regulation of research on biotechnology is not clearly set out and defined within the current legal and regulatory framework. The Institute of Jamaica is mandated to carry out research into, study, encouragement and development of culture, science and history, the establishment of museums and provision of exhibitions, and compilation, publication and dissemination of cultural, scientific, historical or national interest records. The Natural History Division houses the major national collections of flora and fauna. The Institute is the focal point for the Clearing House Mechanism of the Convention on Biological Diversity. Although the Institute has the substantial responsibility to carry our public education on Biodiversity and the national strategic plan it does not have an implementation role. The University of the West Indies is a private institution. It is one of the main institutions that has in the past and continues to carry out active and wide ranging research programmes on Jamaica’s biodiversity. A number of departments research and collect specimens for bioprospecting and often facilitate international academic and commercial partners. The collections housed are among the largest and most wide ranging in the island. The work carried out mainly involves the faculty of Basic Medical Science, the Biotechnology Centre, the Departments of Chemistry and Life Sciences and the Natural Products Institute. OPERATIONAL AND ORGANISATIONAL ASPECTS CONCLUSIONS Many different programs have been carried out by both Government and Non‐Government organizations based on biodiversity conservation and increasing research and environmental management. While many organisations are actively involved, no single organisation or agency is responsible for biodiversity management and the issues related to traditional knowledge and genetic resources. Rather, there is considerable overlapping of responsibilities and activities.

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Agencies involved with the Convention on Biological Diversity and related aspects of traditional knowledge and management of genetic resources are faced with a number of constraints. As well as overlapping mandates, there are unclear roles as it relates to the Convention. Many individuals also cited ongoing financial constraints, and difficulties in obtaining approvals. There is a lack of specialized human resources – especially in key scientific areas such as taxonomy. The staff members in many of the agencies are not well versed with the goals of the Convention. None have been focused directly on capacity issues related to the implementation of the third objective of the Convention; that is, “the fair and equitable sharing of the benefits arising from use of biological diversity/genetic resources”. There are a limited number of persons in agencies with training in the area of managing traditional knowledge and genetic resources as it relates to biodiversity. This is particularly so in relation to benefit sharing arrangements and development of associated contractual guarantees. There are no commonly agreed structures or processes for dealing with licences, protection, access or benefit sharing. While a number of programmes have been completed which have contributed to developing capacity in environmental management, none has specifically included capacity of agencies in the management and protection of access. There is currently no comprehensive inter‐agency method or mechanism being used for regulatory authorities and scientific research institutions to administer a system or database in order to establish and share records of all the access that has been granted to genetic or traditional resources in Jamaica. Costa Rica, India and Peru were examined as best practice reference countries. The elements which have been implemented in each of these jurisdictions and which can be most obviously applicable to Jamaica are:

Establishment of common law for biodiversity;

Establishment of Competent National Authority with overall responsibility for biodiversity; and

The establishment of a National Biodiversity Fund.

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Conclusions – Overall Comments Jamaica is rich in genetic resources and associated traditional knowledge.

Jamaica has a sound biodiversity policy (National Biodiversity Strategy and Action Plan). However, it has not been implemented.

The Convention on Biological Diversity makes it imperative that access to genetic resources is to be encouraged but regulated to ensure that the prior informed consent of states and of indigenous and local communities be obtained before access can be had.

There has been no attempt to enact any policies, laws or procedures to regulate the acquisition of intellectual property rights in relation to genetic resources and/or traditional knowledge. This includes the prevention of persons or entities in specified circumstances from acquiring intellectual property rights in respect of subject matter which utilises genetic resources or traditional knowledge, as well as to entitle persons and communities in specified circumstances to acquire intellectual property rights in respect of subject matter which utilises traditional knowledge.

The environmental and related laws as well as the intellectual property and related laws in Jamaica all provide a good framework upon which to develop and implement legislation and procedures which are compliant with the Convention on Biological Diversity. However the gaps and shortcomings in the environmental, intellectual property and related laws in Jamaica are significant – especially as it relates to compliance.

Whereas the intellectual property laws of Jamaica are administered by one agency, namely the Jamaica Intellectual Property Office, the environmental laws of Jamaica are administered by several agencies, and there are overlaps and duplications in functions as well as a lack of coordinated operations in a number of areas.

The regulation of access to genetic resources and the requirements for benefit sharing in Jamaica are both inadequate to comply with the Convention on Biological Diversity. There is no legal protection for traditional knowledge. The Convention makes it imperative those resource and traditional knowledge providers, whether states or communities, share in the benefits arising out of the utilization of genetic resources and traditional knowledge in respect of which they have granted access.

There is no clear coordination among and within relevant agencies and a lack of a coordinated approach amongst government agencies as it relates to the overall management of biodiversity, and in particular access and benefit sharing as it relates to traditional knowledge and genetic resources. There is no agency designated to take lead responsibility. There is a need for more fulsome understanding by parent Ministries of their subsidiaries’ roles in the management of biodiversity related traditional knowledge and genetic resources.

Despite the general awareness of the Convention on Biological Diversity and the National Strategy within the implementing agency and its partners, there is not enough

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awareness in terms of traditional knowledge and genetic resources; there is a low level of public awareness and knowledge, and minimal awareness of the Clearing House Mechanism and the Jamaica Memory Bank.

The National Biodiversity Committee needs to be reconstituted by the Ministry responsible for the Environment. The absence of an active Committee has resulted in a direct and negative impact on the coordination of activities to implement legislation, compliance with the Convention, and the recommendations set out in the National Biodiversity Strategy and Action Plan.

There is clear support for designating a competent national authority. Such an entity is a feature of best practice jurisdictions. Responsibility should be vested in an existing organization rather that creating a new entity. There is significant support for a ‘one window’ approach for lodging applications for access and a single reference point for approvals issued and research projects being carried out.

Some countries have adopted stand alone legislation to give full effect to the rights of indigenous and local communities under the Convention on Biological Diversity, while other countries have adopted detailed Biodiversity laws which integrate the several pieces of environmental laws previously in force to comply with the Convention holistically, whether in addition to or exclusive of any law dealing with community rights. Any law(s) aimed to implement and comply must clearly outline and balance the rights of the State, the rights of indigenous and local communities, the rights of private resource owners or holders, and the rights and interests of genetic resource and traditional knowledge receivers. Any law(s) aimed to implement the Convention must clearly outline the procedure which those seeking access to genetic resources and/or traditional knowledge must comply with, as well as the penalties for non‐compliance.

In most of the over 50 countries which have enacted Convention on Biological Diversity compliant laws, access to genetic resources and/or traditional knowledge are regulated by a permit and licence scheme. In order to guarantee an equitable share of benefits, most of these require receivers to enter into benefit sharing agreements upon mutually agreed terms with providers.

In some countries, Patent laws have also been amended to require disclosure of origin of genetic resources and/or traditional knowledge prior to the grant of a patent, as a means of enforcing the Convention on Biological Diversity provisions relating to access and benefit‐sharing.

In general, community or communal rights are not recognised in relation to land/resource ownership or intellectual property. Countries have adopted varying approaches to practically implement the Convention on Biological Diversity imperatives regarding the rights of indigenous and local communities to be consulted, to effective participation, to give or withhold prior informed consent, to mutually agreed terms, and to benefit sharing.

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Section 3 – Summary of Recommendations

The summary recommendations as set out below have consolidated a number of the detailed recommendations in the four main reports and, in some cases detailed and supporting recommendations have not been included. The recommendations have been underlined and then discussed. The recommendations have been grouped as follows:

1. Policy changes and improvements

2. Legal provisions

3. Organisational and operational arrangements

4. Research needs in relation to taxonomy

RECOMMENDATIONS ‐ POLICY CHANGES AND IMPROVEMENTS A policy to define the appropriate approach in Jamaica on Access and Benefit Sharing must be developed and agreed as a matter of urgency. Divergent views exist on the scope of the current drafting instructions on Wildlife and Protected Areas, and there is an urgent need to define responsibilities of the member agencies and clarifying the current fractured policy framework. Jamaican law must affirm State sovereignty over genetic resources found in or on state lands and in state‐owned ex situ collections and databases and those genetic resources on private lands belong to the landowners. This should include material or information located ex situ in herbaria, botanical gardens, gene banks, or other collections and databases. Any individual or entity seeking to use indigenous or traditional knowledge must be required to obtain a license for the use of it, which should include benefit sharing terms and conditions. The Jamaica Intellectual Property Office should be asked to assist in the preparation of a standard access and benefit sharing agreements. A competent authority or committee should review all licences. Designations in law must be established in relation to ‘No Exclusive Rights’ and ‘Prior Informed Consent’. The laws must make it expressly clear that no exclusive rights or exclusive access to a biological resource arises merely from the issue of a permit by a permit issuing authority or the entering into a benefit‐sharing agreement by a resource access provider. A term of a benefit‐sharing agreement that purports to grant exclusive rights or exclusive access must be void. Prior informed consent of the Government and/or the relevant community must be required for access to genetic resources and traditional knowledge. Jamaica law must provide for monetary and non‐monetary benefits from access to genetic resources and traditional knowledge. Jamaican laws must also provide differential access regimes and procedures for commercial as opposed to non‐commercial purposes. Jamaica should provide, in the law for benefit sharing, for 1) joint ownership of intellectual property rights; 2)technology transfer; 3)location of production, and 4)research and development units

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in the State or relevant communities. This approach can generate support for biodiversity sustainability and preservation. These arrangements will also encourage local research, and maintain traditional and customary uses of genetic resources. However the requirements of benefit‐sharing must be legislated and enforced for all access. A structured process to ensure public participation and transparency must be established and put into operation. This must include public input and provision of information on achievements, progress into the process at all stages by the Ministry responsible for the Environment. The law must also require formal, structured and effective consultation with indigenous and local communities prior to declaring ‘protected areas’ or prior to any decision or act which may affect those communities. RECOMMENDATIONS ‐ LEGAL PROVISIONS The main premise for the recommendations which have been developed is that one holistic Biodiversity Act is the most efficient and effective way to enact and, importantly, to subsequently implement Jamaica’s obligations under the Convention on Biological Diversity. It is nonetheless equally valid to approach this requirement by retaining existing laws and making a number of coordinated amendments. The approach which is adopted should be designed to incorporate all the required new policies, laws, regulations and procedures in the most harmonious, practical and readily enforceable way. Clear and effective laws to ensure implementation of the Conventions objectives must be developed. Effective regulation of an Access and Benefit Sharing regime requires clear and effective laws to ensure implementation of the Conventions objectives. A number of laws must be designed to work in tandem to ensure a coherent framework for an applicant and a number of government agencies will need to work together. The Attorney General’s Department should be asked to give a legal opinion on how to ensure the new legal regime includes legal certainty and clarity of rights (property rights and ownership) to genetic material. A specific draftsman should be designated by the Chief Parliamentary Council to assist in the development of the appropriate legislative framework. A holistic Biodiversity Act would, if enacted properly and effectively regulate access and benefit sharing in respect of genetic resources and traditional knowledge and mandate one regulatory body established to administer the Act in co‐operation with other relevant agencies. In any event, Jamaican laws must be structured to comply with and be consistent with the Convention on Biological Diversity. In order to comply with best international practice, the Jamaica laws must protect and regulate access and benefit sharing in relation to genetic resources and traditional knowledge. In particular, the Jamaican laws must define:

‘Biological diversity’, ‘Genetic resources’, and ’Genetic material’ in line with the Convention on Biological Diversity;

‘Traditional knowledge’ in line with the World Intellectual Property Office (WIPO); and

‘Bio discovery’ and ‘Bioprospecting’ in line with Australia’s Biological Resources Act.

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Access to all genetic resources, including all species of animals, birds and plant life, must be regulated so as to ensure fair and equitable benefit sharing; and require prior consultation with local communities. The laws and regulations must therefore create an effective permit system for bioprospecting that clearly states the requirements for application for a permit, and the laws and regulations must require benefit sharing agreements. The powers of the Minister with responsibility for the Environment must be expanded. There is a need to make regulations to address benefit sharing, mutually agreed terms, prior informed consent and related rights of indigenous and local communities. A designation in law in relation to the two areas of ‘No Exclusive Rights’ and ‘Prior Informed Consent’ must be established. The laws must make it expressly clear that no exclusive rights or exclusive access to a biological resource arises merely from the issue of a permit by a permit issuing authority or the entering into a benefit‐sharing agreement by a resource access provider. A term of a benefit‐sharing agreement that purports to grant exclusive rights or exclusive access must be void. Amendments will be required to the Patent Act, Copyright Act, Institute of Jamaica Act and Access to Information Act in relation to access or use of genetic resources or biodiversity‐related traditional knowledge, in order to:

Regulate access;

Disclose origin;

Prove prior informed consent; and

Prove fair and equitable benefit sharing agreements

RECOMMENDATIONS ‐ RESEARCH NEEDS IN RELATION TO TAXONOMY Training programmes in taxonomy should be developed and implemented on an ongoing basis. This should include both undergraduate and postgraduate degrees, as well as short training programmes. Scholarships and student loans must be offered in the area of Botany and Taxonomy. There is a need to recruit, develop and encourage students to pursue studies in law, taxonomy, and conservation in relation to Biodiversity related Traditional Knowledge and Genetic Resources. Institutions such as the Student Loan Bureau, and the tertiary level educational institutions and the private sector must offer more and easier access to funding. Education starting at the early childhood level on occupations such as these must be introduced. A targeted number of schools and school fairs must be met each year from the relevant departments at Universities. Digitisation of Botanical and Zoological Collections should be done. This should include all national collections and should be done along with the advancement of DNA Bar‐coding. This, when used, will provide a critical support tool for Taxonomic Research in order to complement traditional techniques. Digitised botanical and zoological collections should be placed in a database which is searchable through the internet.

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A mechanism to improve access to technical assistance should be implemented. The World Taxonomist Database is an excellent platform that can be used to list taxonomic experts in Jamaica. The Jamaica Clearing‐House Mechanism should also have a mirrored list of local experts which is simultaneously updated with the world database. Assistance should be extended to environmental professionals conducting Environmental Impact Assessments and other environmental assessments. At the Biodiversity Convention Conference of the Parties in 2006, all party countries were urged to nominate a national focal Point for the Global Taxonomy Initiative (GTI). Jamaica is currently without a nominated GTI Focal point and one should be nominated with coordination resident in the Institute of Jamaica. Coordination of Taxonomic Research and Dissemination of findings should be a feature of the national biodiversity action plan and source funding for taxonomic research should be established and managed to ensure it is available continuously. A sustainable and coordinated approach to seeking funding for taxonomic research should be a part of the mandate of all institutions involved in taxonomy. Publication of taxonomic research regionally should be encouraged. The Institute of Jamaica should source funding from the Global Taxonomy Initiative to establish this kind of publication. RECOMMENDATIONS ‐ OPERATIONAL AND ORGANISATIONAL IMPROVEMENTS The Ministry responsible for the Environment must declare a national focal point for Prior Informed Consent. The implementation must ensure that the Focal Point has the necessary resources and institutional capacity to take on a leadership role in implementing the requirements of a Biodiversity Law. The role must include the authority. A new or reconstituted inter agency committee should be established. Ideally, the National Biodiversity Committee can be reconstituted. This body must be given the responsibility to review the Draft Bioprospecting Programme and determine whether it should be adopted. It can clarify roles and responsibilities, eliminate duplications and improve coordination of key agencies including the National Land Agency, the Forestry Department, NEPA and Protected Area Managers in the development of a practical Access and Benefit Sharing regime. This new or reconstituted inter agency committee must be mandated by the Minister responsible for the Environment. The Committee must be formed with strong leadership, civil society participation and some resources allocated to finalise and define a process that will be effective in Jamaica and consider the current legislative proposals and assist in the finalization of drafting instructions. There is also a need to designate a single high level civil servant or public officer to drive the process of the re‐establishment of the committee to coordinate activities under the Convention. The Committee must have the authority and capacity to conduct or delegate negotiations and define legal agreements on behalf of the nation. Jamaica must develop a Competent National Authority. There is a need to develop or designate a lead agency as a Competent National Authority with responsibility for oversight of matters of biodiversity relating to Traditional Knowledge and Genetic Resources. This would include

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requests for access, including bio prospecting, and benefit sharing agreements. A small committee with representatives from NEPA, the Institute of Jamaica, The Intellectual Property Office (JIPO), University of the West Indies, Scientific Research Council, and two Environmental NGOs should oversee the development of the Authority. This Competent National Authority must be responsible for implementation of the National Biodiversity Strategy and oversight of applications of scientific and traditional knowledge related matters and the development of mechanisms for the using the income from access and benefit sharing arrangements. The national authority which has been established in Costa Rica provides a relevant best practice model which could be considered and adopted as appropriate for Jamaica. A national Biodiversity Trust Fund or other appropriate kind of national fund must be established and put into operation in order to manage the results of successful benefit sharing agreements. Options to seek funding need to be discussed and supported and created. The fund could be coordinated by the Planning Institute of Jamaica, the Scientific Research Council, the Environmental Management Division of the Office of the Prime Minister or NEPA; and ultimately by the Competent National Authority. The Biodiversity fund could generate revenue from:

Access to designated information;

Agreements for material transfers;

Bio prospecting licenses; and

Benefit sharing arrangements.

Best practice countries have established such a National Fund as a means of revenue generation for sustaining conservation and protecting Traditional Knowledge and Genetic Resources. The fund could support organizations directly involved in biodiversity and empower communities in the implementation of practices for sustainable conservation and protection. A single process for applications and permit issue, associated with an online database accessible on the internet must be created and a national Biodiversity database must be established. One standardized form for access to information must be developed and used by all agencies that interact with in terms of biodiversity related access management. This should include records of permits, agreements signed, scientific research collaborations, and resources accessed in the past. This would establish consistency and also ensure that all agencies are aware of the information required prior to granting consent for any access. There are a number of separate depositories of biodiversity related data in Jamaica as well as several collections. A single database would enable ‘logical’ coordination and consolidating all information. This will improve physical and legal management of Traditional Knowledge and Genetic resources and could reduce the current overlaps, duplications and gaps. In common with the Competent National Authority, the best practice countries reviewed have established databases for national biodiversity related knowledge and genetic resource data.

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An inventory must be done of the material in the Jamaica Memory Bank in order to detail and ascertain what percentage of it relates to or is derived from each indigenous and local community and individual. Individuals or communities must be registered to receive a share of the fees or other benefits derived from access to the material. Consent from individuals, and indigenous or local communities from whom traditional knowledge held in the Jamaica Memory Bank is obtained, must be secured. The inventory must be done to facilitate the appropriate and transparent remit of any share of benefits due to an individual, or an indigenous or local community, from use of traditional knowledge held. The Memory Bank must not be used as a public database for the purpose of defensive disclosure for use by patent examiners in patent applications. Rather it should be maintained as a resource for students and researchers. It should not be considered as placing communities’ traditional knowledge in the public domain. There are a number of recommendations relating to recognising and properly defining communities of interest, and empowering them to support access rights, benefit sharing and sustainability practices in terms of national biodiversity. These include:

The Jamaican laws and regulations must clearly define an ‘indigenous community’ as ‘a community differentiated by distinctive culture, which is traditionally organized along successive generations and with its own customs.’

The Jamaican legal framework must define ‘local community’ as ‘a community of people living or having rights or interests in a distinct geographical area’.

The law must require formal, structured and effective consultation with local communities prior to declaring ‘protected areas’ or prior to any decision or act which may affect those communities.

Rights and practices of communities in respect of traditional lands, traditional knowledge, traditional cultural expressions and intellectual property must be recognised and protected in law.

Public awareness‐raising, training programmes and assistance in proper regulation of access must be provided for communities to empower their community organisations.

Information and copies of completed field and research reports must be provided to the designated community liaison persons where work was done.

Prior informed consent of the Government and/or the relevant community must be required for access to genetic resources and traditional knowledge.

Documents held by the Jamaica Memory Bank which contain traditional knowledge must be exempt unless there is prior informed consent of the individual or community from which that knowledge was obtained, as well as mutually agreed terms including benefit sharing in respect of that knowledge.

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Section 4 – Main Implementation Challenges and Factors

There are a number of challenges and factors for success in devising a suitable access and benefit sharing regime, including amendment and implementation of law, policy and procedure, to comply with the Convention on Biological Diversity in Jamaica. The main challenges and success factors have been set out in this section. Amendment of environmental and related laws One of the main challenges is to harmonize the several pieces of environmental legislation to devise an appropriate Access and Benefit Sharing or “ABS” regime, which entails resolving the overlaps and duplications between the mandates and operations of different agencies including the National Environment and Planning Agency, Natural Resources Conservation Agency, Jamaica National Heritage Trust, Forestry Department (Ministry of Agriculture), Fisheries Division (Ministry of Agriculture), Ministry responsible for the Environment, and the Scientific Research Council. This is not an easy task and it will take time. The main factor for success in this regard is that there needs to be an inter‐agency consultative process involving the agencies above as well as Jamaica Intellectual Property Office and the Parliamentary Counsel. There also needs to be an agency or government ministry to take the lead to co‐ordinate the inter‐agency consultative process. The lead agency will have to comprise experts familiar with not only the Convention and the environmental laws in Jamaica, but also familiar with the intellectual property protocols and best practices which have been instituted in other jurisdictions to implement an adequate ABS regime. Amendment of intellectual property and related laws The main challenge here is to amend the intellectual property laws, while still maintaining consistency with the international intellectual property law regime. Disclosure requirements for genetic resources and traditional knowledge are currently being looked at internationally, as is a regime to protect traditional knowledge. The compatibility of traditional knowledge with intellectual property is debatable and finding the best method to achieve interoperability between the two knowledge systems will be challenging. The main factor at this time that will inform success in this regard is the conclusion of the CARICOM Traditional Knowledge Working Group, which was initiated in March 2008 to hold consultations throughout CARICOM and develop a Model Traditional Knowledge Law for the region. The policy of the Jamaican Government therefore should be to await the outcome of that Working Group before deciding how to amend Jamaica’s intellectual property laws to protect traditional knowledge. Implementation of an Access and Benefit Sharing (ABS) regime The implementation of an appropriate ABS regime, once decided and enacted, will also depend on several agencies involved in an inter‐agency approach to implementation. The main

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challenge here is attracting the several persons with the expertise and understanding required to administer the new or substantially amended regime. Another main challenge in this regard is the implementation of the new benefit‐sharing provisions of the ABS regime. Benefit‐sharing being new to Jamaica, it will require detailed procedural guidelines and regulations to be prepared, which will then require persons with the requisite expertise to advise the several agencies or government ministries regarding implementation of the policy, laws and procedures. It will also require, as a factor for success, extensive training by experts of individuals both within relevant government agencies and departments, as well as in private industry and in indigenous and local communities, to handle the new ABS regime, especially the benefit‐sharing aspects. Empowering indigenous and local communities A major challenge will be to empower indigenous and local communities, as in situ conservators of biodiversity, to be able to administer the new regime in their communities. First and foremost, this requires the issue of communal land ownership to be settled, especially in relation to the Maroons and their Treaty rights. This will not be easy but is necessary to properly empower communities to attract the capital needed to actively manage their biodiversity. In relation to local farming communities and other communities of interest, which have been living off of inadequate land resources but nevertheless maintaining environmental traditions and ways of life, land redistribution is critical for empowerment. Another major challenge is to arm indigenous and local communities with current environmental, technological and legal information, to make biological conservation and other traditional knowledge practices more efficient, while maintaining their traditions. This can be done by organising workshops and other educational forums, supported with materials and ideally online access to resources, so that members of the communities can learn the intricacies of a new ABS regime and share knowledge. Specifically, indigenous and local communities should be empowered to know what information to request of bio‐prospectors, which government agency to refer them to (if that is decided by the communities) and which essential terms and conditions, including relating to benefit sharing, should be included in any grant of access to genetic resources and/or traditional knowledge. The main factor for supporting success in relation to communities is that there is a generally good and fairly active relationship between most communities in Jamaica and the Government. Indigenous communities have been involved extensively in the CARICOM Traditional Knowledge Working Group consultations held, as well as in the three consultations held as part of the project for which this report was prepared. Hence there is already some knowledge and understanding within some of the communities of the context within which regulation of access to genetic resources and traditional knowledge is being contemplated and projected nationally, regionally and internationally. The need now therefore is for the law to reflect the current

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relationships that exist between indigenous and local communities and the Government of Jamaica. Funding As with all initiatives being developed in Jamaica and other developing countries, a major challenge is funding. Substantial funding is required to hire experts to conduct Access and Benefit Sharing training workshops island wide, to hire additional staff and personnel required to fill new posts that will need to be created and filled to administer the Access and Benefit Sharing regime. There is available international funding to assist developing countries to enact and implement laws and procedures compliant with the Convention on Biological Diversity. The Convention itself is premised on the obligations of developed countries to assist developing countries to meet their obligations, including transfer of technology. Therefore it should be possible for Jamaica to access funding in this regard. Additionally, international funding is available for supporting indigenous and local communities and assisting them to increase their capacity to preserve their genetic resources and traditional knowledge, scrutinise access applications and negotiate contracts.

Chapter 2 – Assessment of the Current Policy and Legislative Framework

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Report on the Assessment of the Current Legislative Framework – the Convention on Biological Diversity in Jamaica

Mrs. Carole Excell

January 2010

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Introduction

Jamaica formally ratified the Convention on Biological Diversity (CBD) on January 6, 1995. The main objectives of the CBD as outlined in Article 1 are the:

• Conservation of biological resources,

• Sustainable use of its components, and

• Fair and equitable sharing of benefits arising from its use.

To comply with its international obligations under this Convention, and as required under Article 6(a), the Jamaican Government developed a National Biodiversity Strategy and Action Plan (NBSAP). This NBSAP was accepted as government policy in 2003 when it was approved by Parliament and became an official White Paper. This policy’s role is to guide and facilitate the process of implementation of Jamaica’s international obligations. Unfortunately, the adoption of the policy has not led to the coordination of a systematic approach to implementation in terms of the development of a new legislative framework. There are currently no specific legal provisions that create an access and benefit‐sharing regime that complies with the requirements of the CBD. Instead, Sectoral environmental laws have been reviewed and new proposals for reform of existing legislation have been concluded in a piecemeal manner to satisfy separate government agencies mandates and priorities. This report addresses the following:

1. A review of the current policy and legislative framework to ensure that Jamaica can implement an Access and Benefit‐sharing (ABS) regime,

2. Identification of the organization(s) responsible for meeting the legal and regulatory mandates,

3. Proposals for the optimal procedures for development and implementation of policy and legislation relating to access and benefit‐sharing to facilitate practical implementation,

4. Documentation of gaps, and assessment of the main challenges and factors for success.

5. Recommendations on the most appropriate approach for biodiversity related legislation and other related conventions and agreements,

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The need for an Access and Benefit‐sharing (ABS) regime The CBD defines the term “genetic material” as “any material of plant, animal or microbial or other origin containing functional units of heredity”1. The definition of genetic material is directly related to the definition of genetic resources under the CBD which is “genetic material of actual or potential value”2. “Bioprospecting” is a term of art which has not been defined in international law but is often at the heart of any ABS regime. Bioprospecting encompasses the process to obtain access to genetic resources including the collection, extraction and screening of samples of genetic resources for potential use in pharmaceutical, agricultural and industrial applications. Bioprospecting has occurred over a number of years in Jamaica, in regards to a range of species and including seeds, snakes, insects, bats, and marine organisms3. Bioprospecting has been carried out by both Jamaican nationals and foreign users of genetic resources. Access has been granted in an ad‐hoc manner with little coordination amongst agencies by way of administrative and regulatory permitting processes in a number of instances. Species have also been collected by researchers conducting bioprospecting activities outside of any regulatory control of the State. There has not been sufficient regulation of bioprospecting or processes developed to provide any tangible benefits. Controlling and ensuring appropriate access to genetic resources would change the current paradigm and may have a spin‐off effect of furthering programs on the use of Jamaica’s genetic resources in research and development. The ABS process has the potential to be used as an important tool to provide incentives for the conservation and sustainable use of biodiversity and as a mechanism to highlight the importance of Jamaica’s protected area system. However it must be borne in mind that experts in this field have advised that:

“Experiences over the past decade suggest that as a development strategy, bioprospecting delivers limited benefits and, contrary to popular opinion, is unlikely to provide significant financial benefits to either high or low diversity countries. On the other hand, non‐monetary benefits can be significant, especially with regard to the building of scientific and technical capacity”4.

International regime for ABS The CBD introduces an international framework that links the conservation of biodiversity to preparing an equitable framework for access and the sharing of the benefits from the use of genetic resources. The CBD calls for a fair and transparent relationship between the users and

1 Article 2 Convention on Biological Diversity

2 Ibid.

3 This was verified by representative of the NEPA who were interviewed for the production of this report and is also referenced in the National Biodiversity Strategy and Action Plan

4 “Beyond Access, Exploring implementation of the fair and equitable sharing commitment in the CBD”, ABS series No. 2 IUCN, Morten Tvedt

and Tomme Young

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providers of genetic resources. It recognises that States have sovereign rights over their genetic resources and thus the right to control access. Regulating access must not unduly create restrictions to access from internal and external users but instead provide clear rules to facilitate access. The main elements of an access regime as outlined in Article 15 of the CBD include to:

(a) Obtain the prior informed consent of the provider of the resource,

(b) Negotiate a fair agreement on mutual terms,

(c) Agree to the sharing of the benefits arising from the use of the resource,

(d) Ensure the participation of the provider in scientific research utilizing the resources, and

(e) Ensure the resources will be put to environmentally sound uses.

The CBD requires parties to prepare national strategies, plans and programmes to encourage parties to focus on the implementation of all obligations under the CBD within a national process that takes into consideration cross‐Sectoral plans and policies and existing levels of capacity in institutions and individuals. The parties to the CBD have worked assiduously to provide guidance on the implementation of an appropriate framework for ABS as the CBD itself does not give countries a road map to compliance. As of the time of writing this report, the international regime governing ABS under the CBD has yet to be fully defined. National regimes therefore, have varied widely in the choice of approaches that have been adopted at the regional level5 and within continents6 with varying levels of success. Regimes have adopted differing scopes in terms of the type of genetic resources covered (exclusion of genetic resources accessed or exchanged for direct use or consumption or for traditional practices), how they are collected on site (in‐situ) or from offsite collections (ex‐situ) and the coverage of the legislation ( e.g. inclusion of traditional knowledge). Guidelines have been developed by the parties to the CBD on access to genetic resources and the fair and equitable sharing of the benefits arising from their utilization called the Bonn Guidelines. The purpose of these guidelines is to assist Parties, Governments and other stakeholders in:

• developing an overall ABS strategy,

• identifying the steps involved in the process of obtaining access to genetic resources and benefit‐sharing,

5 the Andean Pact Decision 391 establishes the legal framework for access to genetic resources in member countries and the

procedure to obtain it (Bolivia, Colombia, Ecuador, Peru and Venezuela)

6 An African Model Law to implement the CBD was created in 1998 by the Ethiopian Institute for Sustainable Development and endorsed at the 68th Ordinary Session of the Council of Ministers of the OAU held in Ouagadougou, Burkina Faso in 1998.

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• establishing legislative, administrative or policy measures on ABS, and

• negotiating contractual arrangements for ABS.

These Guidelines are the only approved guidance given to parties under the CBD on developing a regime to facilitate ABS at this time. The Bonn Guidelines cover:

• the creation/designation of an administrative focal point and structure,

• the development of a system and standard terms for contractual or permit creation,

• public participation, and

• identification of possible non‐monetary modes of payment.

There is no evidence of any active or structured attempt in Jamaica to implement these guidelines. This is not surprising as the Bonn Guidelines although useful in identifying main areas that parties must consider in the preparation of national ABS frameworks have not gone far enough. The Bonn Guidelines act as a general framework for standardization of permitting and contractual processes within national legislation but they are voluntary in nature and do not bind any country or users of genetic resources. The Parties to the CBD are therefore currently working to define a legally binding framework on ABS. This will clearly affect any preparation by parties of appropriate ABS laws. At its ninth meeting in Bonn, in May 2008, the Conference of the Parties (COP) extended the mandate of the Working Group on Access and Benefit‐sharing (Decision IX/12) and instructed it to finalise the negotiation of the international regime before its tenth meeting, in 2010. The new international regime will focus on:

• increasing the clarity around source countries and the institutionalisation of Prior Informed Consent (PIC),

• the need for clear mechanisms of oversight, implementation and enforcement of ABS agreements, after the user has acquired the samples and taken them (or the information extracted from them) out of the country, and

• the need for clear rules and mechanisms for addressing the relationship of ex‐situ collections to the ABS regime7.

The development of this legally binding framework which many States believe will become a Protocol to the Convention will be critical to assist in the creation of, and implementation of legislation governing ABS in Jamaica.

7 Summary Analysis: Legal Certainty for Users of Genetic Resources under Existing Access and Benefit‐sharing regimes (IUCN‐Canada) (UNEP/CBD/WG‐ABS/3/INF/10).

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Jamaican requirements and activity Jamaica is required as a party to the CBD to implement the Conventions obligations into domestic law. The National Biodiversity Strategy and Action Plan is to be utilized to implement the Convention (art 6) and national reports to the Conference of Parties (art 26) provide a means by which Jamaica’s progress can be measured against the requirements of the Convention and the plan. The role of the NBSAP in accordance with COP‐9 Decision IX/8 is to define national priorities, creating an action‐driven, practical and prioritised, effective and up‐to‐date national framework for the implementation of the three objectives of the Convention, its relevant provisions and relevant guidance developed under the Convention. The Plan is also to act as a source to assist in mobilising national, regional and international financial resources in support of priority activities, considering existing and new funding sources. Unfortunately the National Biodiversity Steering Committee that was responsible for the creation of the NBSAP no longer exists, and it is unclear what responsibilities were divided among agencies for continued implementation of the requirements under the NBSAP. The Jamaican Government must seek to promote fair and equitable sharing from the use of biodiversity through defining an appropriate legislative framework. Specific legislative measures are needed to incorporate the CBD into domestic legislation in Jamaica. Without this national framework there may not be clarity on whether a national permitting system or contracts will be upheld as legally binding on the government and other parties. Jamaica is not unique in its status of developing a new legislative framework for ABS as “fewer than 12% of CBD parties have adopted any actual legal, regulatory or other measures implementing and addressing ABS”8. So it is important that time is taken to make the right decision rather than the most expedient decision. However, in the decision of Natural Resource Conservation Authority v. Seafood and Ting International Ltd. (Court of Appeal of Jamaica)9 it was determined that a permitting system based on the Convention on International Trade in Endangered Species was invalid because there was no domestic legislation incorporating CITES into Jamaican law. As an ABS sharing regime will most likely be implemented through a permitting and/or contractual system, it is critical that a timely and concerted effort be made to define a legal framework that will be held by local courts to be binding on all parties.

8 Only 39 countries have filed any measures in the ABS database, and only about 18 of these include binding legal requirements. Balancing

Building Blocks of a Functional ABS System Tomme R. Young, Consultant, and Morten Walløe Tvedt

Fridtjof Nansen Institute (FNI), Oslo, Norway

9 (Suit No. C.L. 1999/S‐134; dated July 1 1999)

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Section 1 – Policy

Jamaica’s National Biodiversity Strategy Action Plan (NBSAP) The NBSAP is the principle government policy addressing ABS. It was developed by the NRCA/NEPA. The NBSAP has as one of its main goals to ‘facilitate access to biological resources to promote developments in biotechnology and to ensure benefit‐sharing’. The strategy however is a framework document and was never intended to incorporate detailed policy decisions on the control of bioprospecting. The NBSAP does not define how Jamaica will establish incentives to promote scientific research on natural products and regulate the development of this sector or develop rules governing the negotiation of benefit‐sharing arrangements. The policy defines ABS as an area of work still to be commenced. Sectoral Policies There are very few finalized official government policies (White papers) in existence in Jamaica that provide a context for the regulation of access and benefit‐sharing. Many of the existing policies set out a framework under which environmental management must be pursued or seek to promote the conservation and sustainable use of specific resources. These include the Jamaica National Environmental Action Plan, The Jamaica National Land use Policy, Management and recovery plans for endangered species Watershed Policy, Ocean and the Coastal Zone Management Policy. There are only two policies that directly address the protection of biodiversity that may assist in providing a practical context for the establishment of an ABS regime. These are the Protected Areas Policy and the Forest Policy. Many of the most important policies addressing scientific research and biotechnology are in draft form. These include the Biotechnology Policy for Economic and Social Development (Draft); the Science and Technology Policy 2006 (Draft), and the Biosafety Policy (Draft) 2009. Policy for Jamaica’s System of Protected Areas (1997) The Policy for Jamaica’s System of Protected Areas was revolutionary at the time of its completion. It set a framework for the development of a national system of protected areas and principles for its implementation. It was confirmed as a White Paper in November 1997. It makes specific mention of the importance of the conservation of biodiversity, and offers a commitment to engage local stakeholders in the process of developing a system of protected areas. The Policy has never been fully implemented, however, and focus is now on the development of a National System Plan for Protected Areas. The development of a system plan has not so far included consideration of the most appropriate ABS regime, but rather focused on creating a new legislative framework for sustainable management and financing of all protected areas. A review of protected area legislation in Jamaica10 was conducted as part of the process of creating the system plan. The legal component of the system plan included a

10 PROTECTED AREAS SYSTEM PLAN, LEGAL FRAMEWORK FINAL REPORT, Dr. Winston McCalla ,November 26, 2004

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review of the current legal system and gaps and deficiencies in protected area legislation. Its major recommendation of relevance to the development of an ABS regime is that

“A new Act should be drafted to comprehensively deal with all of the key issues affecting protected areas. This could be stand alone legislation or could be incorporated into the proposed NEPA Act. The provisions to be incorporated in this section of the NEPA Act should be based on the existing provisions of the draft Wildlife and Protected Areas Act’’.

Forest Policy (2001) The Forest Policy was approved as a White Paper in 2001. There is a current proposal that this policy be reviewed and revamped because of the institutional developments which are on‐going at the Forestry Department which is becoming an Executive Agency. The objective of the Forest Policy is to promote the sustainable management of the island's forests and the conservation and protection of forest reserves. This is primarily to be achieved through implementation of a National Forest Management and Conservation Plan. This Plan is currently in its final draft. The Policy includes a specific section on forest research. It provides that a forest research programme will be promoted, established and maintained. Forest research priorities under the policy include:

• valuation of forest resources, including non‐wood products and services,

• establishment of a germplasm bank for tree species with application to conservation, commercial forestry and agro forestry, and

• development of participatory methods in watershed management and agro forestry.

Biotechnology Policy for Economic and Social Development (Draft) This policy focuses exclusively on biotechnology especially for enhanced agricultural, crop and animal production as well as microbial and formulation processes. It outlines current developments in biotechnology in Jamaica and has as an objective the continued promotion of a national biotechnology research and development agenda. The objectives of Jamaica’s Biotechnology Policy include to:

• create an enabling environment for the growth of the biotechnology industry,

• promote an enabling environment for research and development in biotechnology and allied fields through the development of infrastructure, incentives and regulatory framework,

• develop high quality infrastructure with the required support services for manufacturing units through specialized Biotechnology Parks,

• address Biosafety, bio‐surveillance, bio‐ethics and intellectual property rights,

• obtain an inventory of bio‐resources by the Universities, research institutions, NGOs, and private agencies, and build close operational, marketing and research relationships between the public and private sector.

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The policy states that the “Government will set up commonly agreed biotechnology research and development targets among key organizations in agreed priority areas. Research at the university level will be linked to industry needs and special efforts will be given to linking science faculties and their centres to businesses locally and overseas. Government will also support and encourage the transfer of the technology ensuring that research results are moved to commercialisation”.

There is specific reference in the policy to the CBD and Jamaica’s role in ensuring appropriate Biosafety standards because of the development of transgenic papaya and cotton. The policy notes that

“Diversity in the natural resource base is required, more particularly with respect to indigenous fauna and flora in which diversity is significant in assuring a successful enterprise including nutraceuticals and pharmaceuticals. At present diversity in Jamaica’s flora exist but will require a lot of effort for its sustainability”.

Science and Technology Policy (Draft) The Scientific Research Council (SRC) is responsible for the creation and implementation of Jamaica’s Science and Technology Policy. The draft Policy aims to:

• strengthen the role of innovation and the proper funding of Science Technology activities to stimulate diversification of agriculture,

• ensure expeditious use of the island’s biodiversity and protection of the delicately balanced ecology, and

• develop and maintain scientific skills critical for implementing the policy.

The draft Policy clearly concludes that Jamaica is not able to effectively mass produce commodities and that accordingly, the island has to go for high technology markets, boutique items, and value‐added products. The draft Policy proposes that the priority is to find innovative ways to harness the islands natural resources by developing a national science and technology programme to enhance the contributions of natural resources to the economy and particularly job creation by:

• placing agriculture and agro‐industry, forestry and livestock on a firmer technological commercial foundation,

• conducting biodiversity and gene pool audits,

• improving mining and mineral exploration and exploitation,

• exploring the value of marine resources,

• supporting a system of innovation to optimally utilize domestic resources and make use of traditional and indigenous knowledge, and

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• establishing a systematic bioprospecting programme to maximally and strategically create a balance between conservation of natural resources and socio‐economic development

Biosafety Policy (Draft) The Biosafety Policy identifies the mechanisms needed to develop a comprehensive Biosafety framework. The policy outlines a number of threats to the small, fragile ecosystems of the island, including minimal capacity in Biosafety, inadequacy of immediate technical skills needed to implement and operate Biosafety regimes, absence of Centres of Excellence in Biosafety or biotechnology, cross‐border control, public awareness, and public perception. The legislative review in the policy notes that:

“The legislation (is) Sectoral and in totality did not treat comprehensively with the issues. A decision to use the existing legislative framework would therefore require amendments to several pieces of legislation. The amendments would need to address not only the substantive Biosafety issues, but also issues of competence with respect to decision‐making and the establishment of rules and regulations within each sector”.

The draft policy outlines the role of the National Biosafety Committee in monitoring the importation of any plant, seed, cutting or slip, which has been genetically modified and imported into Jamaica for the purpose of experimentation. It also speaks in detail to the control of importation of plants and animals regulated under the Plants (Quarantine) Act, 1993 and the Animals (Diseases and Importation) Act, 1948 and under the Natural Resources Conservation (Permits and Licences) Regulations, 1996 which provide that the introduction of species of flora, fauna and genetic material and the introduction of genetically modified organisms require a permit from the NRCA. The draft policy proposes to create an enabling environment for resource development through the promotion of modern biotechnology and implementation and monitoring of Biosafety standards, and shared and accessible benefits arising from the use of modern biotechnology across various sectors and industries. Implementation of the new Biosafety framework is proposed to be multi‐Sectoral, involving the collaboration and input of a range of Ministries and Agencies. No new institutions will be created; but instead specific implementation functions will be integrated into the mandates of current government entities. The mechanics of the required interaction is not addressed in detail.

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Section 2 – Laws

There are a number of fragmented pieces of environmental legislation in Jamaica governing Sectoral issues including hunting, trade in endangered species, and rules governing protected areas, forests and fisheries management. None of these statutes provide a framework for defining terms for granting access from all actors, the agreement of mutually agreed terms, or the sharing of benefits. These Sectoral environmental laws however do define a regime for the collection of some genetic resources in‐situ by way of collection permits under protected area and forest regulations and the grant of exemptions from protected status of certain wildlife by the Minister under the Wild Life Protection Act. Unfortunately there is currently no comprehensive inter‐agency method or mechanism being used for regulatory authorities and scientific research institutions to administer a system or database in order to establish and share records of all the access that has been granted to genetic resources in Jamaica. National legislation must be structured so as to define clear and appropriate roles and functions for governmental institutions, private institutions, and private individuals which can, together, enable Jamaica to achieve the goals of the CBD. The NRCA Act, 1991 The Natural Resources Conservation Authority (NRCA) was created as a statutory authority by virtue of the Natural Resources Conservation Authority Act which was passed in 1991. This Act gave the new statutory authority a mandate under four statutes to effectively manage the physical environment of Jamaica. The NRCA is a regulatory authority with jurisdiction provided under:

The Natural Resources Conservation Authority Act,

The Beach Control Act,

The Watersheds Protection Act, and

The Wild Life Protection Act.

The NRCA Act was Jamaica’s first environmental framework Law. Under this Act, the NRCA is empowered to take the necessary steps to:

• effectively manage the physical and natural resources of Jamaica so as to ensure their conservation, protection and proper use; promote public awareness of Jamaica’s ecological systems and their importance to the social and economic life of Jamaica; manage national parks, marine parks, protected areas, public recreational facilities; and advise the Minister on general policies relevant to the management, development, conservation and care of the environment;

• develop, implement and monitor plans and programmes relating to the management of the environment, conservation and protection of natural resources and conduct research into such matters; and

• regulate and control development so as not to cause injury to public health or to any natural resource.

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Wild Life Protection Act, 1945 The Wild Life Protection Act provides for the designation of animal species to be protected by law. The main provision that ensures the protection of animals is found in Section 6 of the Act, which makes it a criminal offence for any person to be in possession of any protected animal, or part thereof. A person may be liable on summary conviction to a fine of one hundred thousand dollars. The Act includes, in the Third Schedule, a list of animals that are designated as protected. All birds in Jamaica except those in the second part of the Second Schedule of the Act are protected. Most of the animals listed on the schedule are endemic to Jamaica. The Act does not mention biodiversity and does not protect any plant species. It does not cover bio‐chemicals or derivatives, synthesized products or specifically regulate ex‐situ sources of genetic resources. Section 22 of the Act allows the Minister to exempt persons from the offence to possess a protected animal (Section 6 of the Act), and allows possession of such protected animals for purposes of conservation and for scientific research. This provision has been used to ensure regulatory control over the collection of protected animals for the purpose of research. The Beach Control Act, 1956 The Beach Control Act regulates rights to the foreshore and the floor of the sea in Jamaican waters. Provisions contained in the Act govern commercial and recreational activities; the control and management of development on the beach through licensing provisions and the protection of declared areas under the Act. The Act also addresses other issues such as prescriptive rights to the shoreline, rights associated with fishing and public recreation. Three protected area orders have been declared under the Act for Montego Bay, Ocho Rios and Port Royal. Within section 7 of the Act and within the Declaration Orders (Section 3) are specified rules for the prohibition of the removal of coral, sea fans and sedentary marine animals. The Act is limited in its mandate to govern development and commercial activities on the foreshore and floor of the sea, and does not appropriately address the larger issues of proper management of the coastal zone and marine resources. There is no consideration of ABS within this Act. Endangered Species (Conservation, Protection, and Regulation of Trade) Act, 2000 The Endangered Species (Conservation, Protection and Regulation of Trade) Act provides for the conservation, protection and regulation of trade in endangered species from the territory of Jamaica. The Act was prepared to allow the Government of Jamaica to fulfil its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Endangered Species (Conservation, Protection and Regulation of Trade) Act gives jurisdiction to the NRCA to act as the Management Authority for implementation of the Convention on International Trade in Endangered Species. There are four Schedules to the Act. The first, second, and third schedules to the Act are consistent with the first, second, and third appendices under the CITES Convention. The First Schedule governs endangered species that are threatened with extinction and which may be affected by trade. The Second Schedule

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governs species which could become extinct if trade is not regulated. The Third Schedule governs species which any contracting party wishes to regulate within its own jurisdiction. The Fourth Schedule is particular to Jamaica and lists a number of indigenous and endemic Jamaican species. Domestic trade in endangered species is controlled under the Regulations. The Act contains a number of provisions which will have an impact on an ABS regime created for Jamaica including:

• definition of ‘plant’, ‘animal’, and ‘specimen’,

• designation of guidelines for scientific research in Jamaica Section 2(6),

• designation of approved scientific institutions for use of species Section 8, and

• Section 10 and Section 11 of the Act which provide specifically that where an animal is an indigenous animal specimen bred in captivity/or an artificially propagated plant for scientific research and scientific exchange the genetic material of the specimen is the property of Jamaica.

The Forest Act, 1996 The Forest Act (1996) provides a broad mandate for the Forestry Department, recognizing the importance of preserving forests intact for biodiversity, watershed protection and eco‐tourism in addition to meeting the country's needs for timber and related forest goods. Section 4 of the Act specifically provides that the functions of the Department include:

• sustainable management of forests in Crown lands and in forest reserves,

• effective conservation of those forests,

• directing and controlling the exploitation, in a rational manner, of forest resources by the introduction of adequate systems for renewal of those resources,

• promoting, establishing and maintaining a forest research programme with a view to;

o enhancing forest management and development, and

o identifying and obtaining silvicultural data to be used in improving financial yields of species important to the national economy.

• ensuring reforestation of suitable lands, and

• granting of licences and permits.

The Forest Act is the only piece of legislation in Jamaica that includes the concept of ‘biodiversity’ although there are no significant provisions on access and benefit‐sharing sharing (Section 15). The majority of the relevant provisions related to access are in provisions governing removal of forest produce. The definition of forest produce is extremely wide and includes ‘trees, plants, fauna, stones, sand and soil, in a forest reserve, forest management area or Crown land and all parts and produce of trees and plants’.

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The Fishing Industry Act, 1975 The taking and catching of fish are regulated by the Fishing Industry Act 1975. The definition of fish includes “shell fish, crustaceans, and marine animal life”. There are no specific provisions that address the collection and conduct of research on fish species. The Act simply provides for a mechanism for a licence to catch fish utilising prescribed methods under the Act. Section 18 of the Act allows the designation of fish sanctuaries. Any person who fishes or attempts to fish in a fish sanctuary is liable to be prosecuted under the Act. Regulations have been passed for the conservation of conch and the management of the conch fisheries for commercial purposes. The conservation of conch regulations provide that without authorization from the Minister under regulation 11 that it is an offence to fish in a Fishery Management Area declared under the regulations. The fishing industry (Conservation of conch (genus Strombus)) Regulations, 2000 are limited to the Conch genus Strombus and do not regulate the collection of any other species for other specified purposes (Section 25). Jamaica National Heritage Trust Act, 1985 The Jamaica National Heritage Trust Act (JNHT) creates the chief agency with responsibility to protect Jamaica’s designated national heritage. Under the Act the JNHT may designate any place name, thing or any species of animal or plant life or any place or object as a national heritage (section 13). Where the owner of a declared national monument or designated protected national heritage suffers loss as a result of the declaration or designation, the owner shall be entitled to receive appropriate compensation for the loss suffered. The Scientific Research Council Act, 1988 The Scientific Research Council Act provides a mandate for the Scientific Research Council (SRC) to encourage the application of the results of research to the exploitation and development of the resources of the Island. The SRC is required to:

collect, collate and review information concerning scientific research schemes or programmes relevant to the development of the resources of this Island,

co‐ordinate scientific research schemes and programmes undertaken by departments and agencies of the Government of this Island, by statutory bodies or authorities, and, subject to their consent, by any other persons or organizations engaged in scientific research in this Island, and

foster and, where the Council thinks fit, to undertake and carry out, scientific research and investigation relating to:

(i) the development and utilization of the resources of Jamaica, (ii) the improvement of existing technical processes and methods, (iii) to encourage persons engaged in any industry to undertake scientific research in connection with such industry on a co‐operative basis, and (iv) to establish and maintain a scientific information centre for the collection and dissemination of scientific and technical information.

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The Institute of Jamaica Act, 1978 The Institute of Jamaica (IOJ) is required under the Institute of Jamaica Act to research into, study, and promote the encouragement of science, history and the creation of museums (section 4). It currently maintains and displays Jamaica’s flora and fauna collections, acts as a storehouse for Jamaica’s natural heritage, disseminates scientific knowledge of Jamaican flora and fauna, promotes the conservation of the Jamaican natural environment, and maintains collections of Jamaican flora, fauna and reference books. The Crown Property Vesting Act, 1960 The Crown Property Vesting Act provides for the ownership of Crown property. The National Land Agency (NLA) is given the jurisdiction to manage national lands under Crown ownership. Regulations Regulations include administrative and permitting requirements to facilitate access to specific species in Jamaica. The most comprehensive regulations to provide such control include the Marine Park Regulations, the National Park Regulations and the Forest Regulations. Marine Park Regulations, 1992 The Marine Park Regulations prohibit the removal of sand, gravel, minerals, coral, sea fans, shells, fish, starfish or other marine invertebrates, seaweed, grasses, soil, rock, stones or other material from the Park (Section 4). The Regulations provide that the NRCA may grant a permit for the collection of natural objects or specimens of marine life for educational, scientific or industrial purposes (Section 9). An application must be completed in writing, and be transmitted through the Manager of the Marine Park. Applications must contain information about the type of research to be conducted on the specimens, the methods to be employed in carrying out the research and collection of the specimens. There is also a requirement to provide an estimated cost of the research. Application fees for commercial research are J$2,000 and for non‐commercial research J$1,000 while permit fees for non‐commercial research are J$3,000 and commercial research J$6,000. There are provisions for the grant or refusal of permits and rights of appeal. A criminal offence is included in the regulations for anybody who, "carries out any form of research or collects any objects or specimens in the marine park without a permit issued under this regulation"(Section 9(4)). The penalty for this offence is a fine not exceeding J$10,000 or a prison term with or without hard labour for no more than two years. There are also provisions for payment to be made for the full market value of the removal of species from the park. National Park Regulations, 1993 The National Park Regulations provide in Section 13 a prohibition against taking any protected animal or protected bird from the national park and against cutting and removing any plant from the national park without the written permission of the park manager. Section 16 of the Regulations provides that the Authority may grant a permit for the carrying out of research and the collection of specimens for education, scientific or environmental purposes or commercial purposes. There is a similar permitting regime as found in the Marine Park Regulations with the

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exception of the prescribed application process and process for the sharing of benefits incorporated within the national park regime. Provisions for application fees and the grant of permits are similar to the Marine Park Regulations. There is a specified application form included in the National Park Regulations. In the application form there are prescribed requirements to be completed by the applicant including:

• description of the objectives of the research, location etc,

• types of information to be collected e.g. specimens, samples, video/photo recordings,

• transitional destination and final destination of specimens and information,

• requirements for linkages with national institutions,

• training for local counter parts,

• contact with indigenous or local communities,

• requirements for consideration of benefit‐sharing,

• details about species collected, and

• requirements to sign a material transfer agreement as part of the permitting process.

Forest Regulations, 2001 The Forestry Department has jurisdiction under the Forest Regulations to govern the removal of forest produce from forest estates or protected areas including removal or collection of any plant, shrub, creeper or vine or any rare or endangered species including orchids (Section 37). There are also provisions that require written permission to catch, and collect any wildlife (Section 38). Section 44 of the regulations allows the Minister to set up a Forest Fund which can include funds for biodiversity projects. Lastly the Conservator pursuant to Section 70 of the Regulations may establish standard operating procedures for the implementation of forest practices in relation to biodiversity.

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Section 3 ‐ Published strategies and relevant Studies

There are four additional studies of relevance to an assessment of Jamaica’s current status of development of an ABS framework. These are:

Jamaica’s Draft National Bioprospecting Program;

the National Capacity Self Assessment report for international conventions,

Perceived costs and benefits of bioprospecting in Jamaica: Results of a stakeholder survey for the International cooperative biodiversity group; and

the Review of the Forest Act and Regulations.

National Bioprospecting Program (Draft) A Draft bioprospecting programme was prepared in 1996 through a project supported by the National Commission on Science and Technology (NCST) and the Organisation of American States. It involved three Jamaican researchers11 visiting the institute responsible for research on biodiversity, InBio in Costa Rica and developing a programme to be institutionalised in Jamaica. This programme outlined a process to develop, facilitate and co‐ordinate bioprospecting activities in Jamaica. It is not clear why the program was never adopted or institutionalised. The programme contextualised the current progress in implementation of the Convention and found that:

• there is no one organization with the resources or jurisdiction to monitor and regulate all bioprospecting activities in Jamaica,

• there is no legal designation of Jamaica’s competent national authority for determining access to genetic resources and negotiating benefit‐sharing under the CBD,

• there is an international perception that only big pharmaceutical industries are stakeholders in bioprospecting initiatives, activities and projects.

• Bioprospecting projects can be divided into national and international partners:

o National: the emphasis here is ‘social’ bioprospecting projects. These include partnerships with national industries, local communities, small companies, NGO’s and even individuals or families with ideas on potential uses for biodiversity but no financial resources, and

o International: international and regional partners may enable countries to attract funding for applications to conduct research and engage in bioprospecting activities to address national and regional issues in areas such as health and social development.

11 Tracy Commack (IOJ), Carole Excell (NRCA) and Trevor Yee (UWI)

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The Programme concluded that it is legally feasible to develop a National Bioprospecting program in Jamaica because:

• there are controls to regulate access to natural resources in protected areas and forest reserves and on Crown lands,

• reliance can be placed on negotiating contractual agreements to support benefit‐sharing including agreements allowing the transfer of species Material Transfer Agreements (MTA), Research Collaboration Agreements, Commercial Agreements and Memoranda of Understanding,

• interim provisions can be put in place that include formalized and standard mechanisms, for negotiations, and

• a multidisciplinary team can be developed including persons with expertise in law, business, and science including chemistry, genetics and biochemistry to negotiate these agreements.

The study recommended that the Jamaican Government should:

• implement immediately legal certainty on the competent Authority and/or focal point to grant PIC for access to genetic resources, establish mutually agreed terms, including benefit‐sharing provisions,

• develop a legal framework that is not bureaucratic and must take into account the types of markets including pharmaceutical, agricultural, ornamental, nutraceutical, and herbal products,

• discuss nationally the concept of ownership of genetic resources verses physical property to determine if changes are required to the Constitution,

• ensure that conservation and sustainable use of genetic resources should be at the heart of the Jamaican Bioprospecting program as the aim should be the achievement of the over arching goals of the CBD rather than only emphasizing provisions on the control of access, and

• provide within the legislative framework for ABS that at least 10% of financial resources achieved through the negotiation of benefit‐sharing arrangements should be allocated for the conservation of biodiversity.

National Capacity Self Assessment Study A National Capacity Self Assessment Report was completed in 2005 as part of a project looking at the status of implementation of multilateral environmental agreements conducted under the auspices of the UNDP and sponsored by the Global Environment Facility. One of the specific objectives of the study was to identify, confirm and review priority issues for action within the thematic areas of the CBD. The report concluded that while there has been some implementation for almost all of the CBD’s substantive articles, i.e. Articles 5 ‐ 19, that the degree of implementation has not been significant for most. In the area of national legislation it was noted that the proposed NEPA Act currently being developed is intended to be utilized to implement the provisions of the Convention and stream line areas of overlap among legislative

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provisions and jurisdiction among agencies. Finally the report emphasized the importance of ensuring that there exists for each International Convention a Committee to guide the country’s implementation of programmes and effectively monitor and ensure inter agency collaboration and coordination. It was specifically recommended that Jamaica establish a ‘Conventions Coordinating Committee’ to ensure that this approach was adopted throughout government.

Perceived Costs and benefits of Bioprospecting Study This study was conducted as a result of a project undertaken by the Discovery Bay Marine Lab (DBML) of the University of the West Indies12 in association with the International Cooperative Biodiversity Group (ICBG). The study was based on a survey of selected stakeholders in coastal areas of Jamaica to assess their perceptions of a research project to look for new drugs from marine plants and animals. The objectives of the survey were to ascertain locals perceptions of the project’s potential impacts (both positive and negative), and obtain stakeholders’ views on how any financial benefits from the project should be allocated. This survey was part of the labs efforts to obtain ‘prior informed consent’ from local people who might be affected by the activities or outcomes of the International Cooperative Biodiversity Group project in Jamaica. The study catalogued negative and positive views of the work to be undertaken, perceptions of benefits and benefit‐sharing mechanisms. The study concluded that there was a great interest in the proposed ICBG project on the part of those local people in the study areas who considered themselves to be stakeholders in the management and use of Jamaica’s marine resources. Local persons viewed this type of project favourably; expecting economic and health benefits as well as other important spin‐offs such as improved environmental conservation and compliance, increased knowledge and awareness of marine resources, and improved education, training and research capacity of local institutions. The main negative threat was determined to be potential environmental impacts and the impacts and mechanisms of harvesting for production if a new drug is actually discovered. Finally the study concluded that overwhelmingly the stakeholders favoured the establishment of a Trust Fund for conservation, education and capacity‐building of Jamaican organisations (CBOs and NGOs) as well as direct contributions of equipment, training or improvements to local facilities.

12 Northern Jamaica Conservation Association (NJCA) conducted the study in 2005

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Legal Review of the Forest Act and Regulations A review was carried out of both the Forest Act and Regulations in 2005. There were significant recommendations made in the report to reform the Forest Act to facilitate implementation of the CBD. The review proposed that the Forestry Department should be given the jurisdiction to ensure equitable access to non‐wood forest resources and to fair distribution of benefits obtained from these products, field testing of inventory assessments, certification and benefit‐sharing mechanisms related to sustainable forest management including the right to grant an exploratory permit on Crown Land. It was proposed that the Forest Act be amended to require an applicant who wished access to forest produce to satisfy the Forestry Department of financial resources; technical competence; experience to conduct such activities; satisfaction of methodology; and proposals for the employment and training of Jamaican nationals.

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Section 4 ‐ Agencies involved in ABS

There are numerous agencies with a role to play in implementation of the Convention. The most important agencies have been listed with their specific roles in relation to the creation of an ABS framework. Office of the Prime Minister (Ministry with responsibility for the Environment) The Office of the Prime Minister (OPM) has overall responsibility for the implementation of designated international environmental conventions in Jamaica. The Environmental Management Division of the OPM is designated as the lead agency for the CBD and assigns representation to negotiate and attend meetings of the COP and Expert meetings. The OPM jurisdiction on ABS The Environmental Management Division is responsible for developing and issuing policy directions on the CBD and Protocol concerning Specially Protected Areas and Wildlife (SPAW); and in facilitating the completion of the appropriate national legislative framework. Designation of representation at International and Expert meetings is coordinated by this Ministry in association with the Ministry of Foreign Affairs. The Environmental Management division also has an overarching coordination role for implementation of environment agreements once they come into force by

• ensuring that the obligations under the agreements are met; and

• setting up mechanisms for cooperation between agencies on environmental issues.

National Environment and Planning Agency/Natural Resources Conservation Authority The National Environment and Planning Agency (NEPA) was created as an Executive Agency amalgamating the Natural Resources Conservation Authority (NRCA), the Town and Country Planning Department and the Land Development and Utilization Commission. It became operational on April 1, 2001. It was created to merge planning and environmental regulatory development functions to ensure orderly development. No overarching NEPA legislation has yet been created to merge these roles. NEPA/NRCA jurisdiction on ABS The NRCA has jurisdiction under the Natural Resources (National Parks) Regulations 1993 and the Natural Resources (Marine Parks) Regulations 1992, including amendments made thereto, to regulate the collection of species and conduct of research on all species of flora and fauna within National parks and Marine parks. Where the NRCA has delegated management of protected areas to non profit organisations it must with designated protected area managers design an application process that can be administered by these organisations which act as its agents. The NRCA is also the designated Management Authority under the Endangered Species (Conservation, Protection and Regulation of Trade) Act. Specific powers to manage protected animals and birds including the regulation of scientific research on these species are given by virtue of the Wild Life Protection Act.

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Ministry of Agriculture and Fisheries The Ministry of Agriculture and Fisheries prepares and implements agricultural policy in Jamaica. It has operational responsibility over the Fisheries Division and the Forestry Department (both of which are in the final stages of transitioning to Executive Agency status). The mission of the Ministry is to advance the development of a modern, efficient and internationally competitive agricultural sector and the sustainable management of these resources to promote food security and contribute to rural development and the overall well being of Jamaicans. The Ministry of Agriculture and Fisheries jurisdiction over ABS The Ministry of Agriculture and Fisheries has to coordinate the development of policy on:

plant genetic resources

forestry and

fisheries.

The Ministry also manages the public botanical gardens. Forestry Department The Forestry Department has jurisdiction over Forest Reserves, Forest Estates, Protected Areas and Forest Management Areas within Jamaica. The Forestry Department has recently been designated as an Executive Agency. The jurisdiction given to this new Agency is critical for the conservation of Jamaica’s biodiversity. The Forestry Department’s mission is to manage, protect and conserve the country’s forest resources, in accordance with national environment policies, for the benefit of present and future generations. The Forest Act, 1996 provides the legal mandate for:

• declaration of forest reserves and forest management areas,

• national and local forest management planning, and

• inventory and classification of forest lands.

The Forestry Agency’s jurisdiction over ABS Jamaica has over almost 200 parcels of Crown Lands and gazetted forest reserves, covering almost 10% of the nation’s land area. Under the Act, private lands may also be declared under the Act. One of the purposes of forest reserves is to protect and conserve endemic flora and fauna. A forest reserve may also be designated specifically for research purposes. The Act calls for the creation of forest management plans, which stipulate the allowable annual cut where appropriate, conservation and protection measures and the roles of other Government departments. The purpose of forest management plans is to ensure the protection and conservation of forests, soil, water, wildlife, and forest products. The Act makes it an offence to: destroy trees, cause damage, light fires, carry axes, kill or injure wild birds or animals in a forest reserve or forest management area. The Forest Regulations include detailed provisions for the regulation of removal of species from prescribed areas. The Forest Department reviewed its

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legislation in 1995 and is considering including specific provisions on ABS within a new Forest Act. Fisheries Division The Fisheries Division is responsible for monitoring and regulating the fishing industry in Jamaica. The Fisheries division grants licences for the conduct of fishing, the registration of boats and the designation of fish sanctuaries. The Fisheries Division jurisdiction over ABS The Fisheries Division has jurisdiction under the current Fishing Industry Act to licence persons to catch fish. The Fisheries Division regulates the commercial exploitation of species subject to conservation regulations. Currently the only species which is regulated in this manner is conch (Strombus gigas). Fish sanctuaries have also been designated as no take zones. Open and closed seasons for the catching of designated species are also regulated under this Act and the regulations thereunder. Jamaica National Heritage Trust The Jamaica National Heritage Trust (JNHT) mandate is to protect both natural and cultural heritage of Jamaica (Section 4). This includes ‘species of plant and animal life’. The key functions of the JNHT are to:

promote the preservation of national monuments and designated protected national heritage, and

carry out such development as it considers necessary for the preservation of any national monument or anything designated as protected national heritage.

The Jamaica National Heritage Trust jurisdiction over ABS The JNHT has very limited jurisdiction over any species in Jamaica. Their interest may lie only in those limited cases where a species is declared as protected national heritage. Rules governing the use of protected national heritage species that may wish to be accessed in this regard would be important. A process of designation including publication of the declared species is required. The Act in Section 17 also includes a provision for prohibition of the removal of any national heritage from Jamaica. National Land Agency The National Land Agency (NLA) is responsible for land in Jamaica owned on behalf of the Crown. The mission of the NLA is to ensure the optimal use of government owned lands. The Commissioner of Lands holds all Government lands on behalf of the Crown pursuant to the Crown Property Vesting Act. Cabinet has recently approved Amendments to the Crown Property (Vesting) Act to provide for the Minister to make an Order to exempt the handing over of lands owned or held in Trust by the Commissioner of Lands to other Government entities from being routed through the Land Divestment Advisory Committee.

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The NLA jurisdiction over ABS As owners of Crown Land the NLA can determine who has the right of access to genetic resources (particularly plants) on land within its jurisdiction subject to the above mentioned legislation. Where genetic resources are not found on Government owned land, permission is required from the private land owner to access such natural resources. There is no specific role outlined in legislation for the NLA in terms of assessment of species or regulation of access to such species before it is leased or sold. Scientific Research Council The Scientific Research Council (SRC) is Jamaica’s principal government agency responsible for the fostering and coordination of scientific research and the promotion of its application. The SRC jurisdiction over ABS There is a substantive role for the SRC to coordinate the conduct of scientific research in Jamaica under the Act both with scientists from Jamaica and abroad. The extent to which the SRC has to coordinate scientific research in relation to natural products; the conduct of bioprospecting and the regulation of research on biotechnology is not clearly set out and defined within the current legislative framework. Institute of Jamaica The Institute of Jamaica (IOJ) is mandated under Section 4 of the Institute of Jamaica Act to carry out the following functions:

(a) the research into, study, encouragement and development of culture, science and history,

(b) the establishment of museums and provision of exhibitions,

(c) the carrying out of research, and

(d) compilation, publication and dissemination of all types of records which in the opinion of the Institute is of cultural, scientific, historical or national interest.

The IOJ jurisdiction over ABS The Natural History Division of the IOJ houses Jamaica’s national collections of flora and fauna. It is not involved in the regulation of bioprospecting activities even if this is for scientific purposes only. The IOJ is the focal point for the Clearing House Mechanism (CHM) of the CBD. The aim of the CHM is to collate and disseminate information on Jamaica’s biodiversity. The IOJ through its Natural History Division continues to be involved in carrying out research on Jamaica’s flora and fauna. It should be noted that although the IOJ has the substantial responsibility to carry our public education on the NBSAP they do not have the role of facilitation of implementation of the NBSAP. University of the West Indies The University of the West Indies (UWI) is a private institution. Although not a government authority its mandate is clearly relevant to bioprospecting activities. The UWI has had various departments as part of ongoing research collect specimens for bioprospecting which often

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facilitates research involving international academic and commercial partners. The UWI does substantive research relevant to bioprospecting;

• the faculty of Basic Medical Science – in physiological and pharmacological testing of plant extracts;

• the Biotechnology Centre ‐ in quantification of active compounds in the field of fungicidal and bactericidal activities;

• the Chemistry Department ‐ in testing natural products for bioactivity;

• the Department of Life Sciences – in testing plant extracts/components for insecticidal and acaricidal, antihelmintic potential and nematocidal activity,

• the Natural Products Institute – in testing plant extracts for nutraceuticals, pharmaceuticals and aromatic compounds.

The UWI jurisdiction over ABS The UWI is a user rather than a regulator of genetic resources. It is one of the main institutions that has in the past and continues to carry out research on Jamaica’s biodiversity. It is not clear however whether the research has been conducted in protected areas, how plants were collected, whether genetic material has been exported based on collaborative research projects, or whether the SRC or NRCA had any coordinating or guiding role in relation to the programmes of research conducted by this private institution. Attorney Generals Department The Attorney Generals Department has a direct role in the negotiation and provision of advice on international treaty negotiation and implementation. The Attorney Generals jurisdiction over ABS The Attorney Generals role has as the Governments legal advisor includes the provision of advice on all aspects of the implementation of the CBD including negotiations at the international level, advice on preparation of legislation and even contractual negotiation of ABS agreements.

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Section 5 ‐ Proposed Laws

The development of a law that adequately regulates access to genetic resources must be based on a system that provides protection for the genetic resources which are to be regulated. The NBSAP states that

“Current environmental legislation only provides a basic framework for the conservation and sustainable use of biodiversity. None of these statutes deals comprehensively with the protection, conservation and sustainable use of biodiversity as they are primarily Sectoral in nature”.

The NBSAP does not define the scope of legislation to regulate ABS. It documents the gaps in the legal framework and defines a timetable of three years to develop relevant policy and legislation as Goal 3 in the Action plan. The Plan identifies that:

• there is a fragmented legal framework;

• legislative amendments are needed to ensure the implementation of the obligations of the Convention; and

• detailed analysis is required to prepare the appropriate framework to meet these obligations.

The NBSAP notes that the review of the following laws is critical to the implementation of the Convention into Jamaica’s national legislative framework:

• The Natural Resources Conservation Authority Act

• National Park and Marine Regulations

• The Forest Act

• Wild Life Protection Act

• Fishing Industry Act

• The Endangered Species (Protection, Conservation and Regulation of Trade) Act

There are a number of proposals to revise the NRCA Act, the Forest Act, and the Fishing Industry Act. Drafting instructions have been prepared for the amendment of the Wild Life Protection Act, and a new Fisheries Bill has been developed. Drafting Instructions for a Wildlife and Protected Areas Act The drafting instructions for a Wildlife and Protected Areas Act propose significant amendment to the Wild Life Protection Act and incorporation of provisions from other legislation on protected areas. These drafting instructions were prepared over eight years ago, but they have never been finalised. The drafting instructions were reviewed through at least two expert consultations meetings in 2003. They are still being reviewed as a basis to implement the CBD

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by the Environmental Management Division of the OPM. They also contain provisions that seek to incorporate the obligations of the SPAW Protocol into Jamaican Law. Protocol concerning Specially Protected Areas and Wildlife (SPAW) The SPAW Protocol is a legally binding protocol which commits government to protect coastal and marine resources further to commitments included within the Cartagena Convention. The Protocol was adopted in Kingston, Jamaica in January 1990. The Jamaican Government although it has signed the Protocol, has not yet ratified it and is therefore not a party. The Protocol has been recognized as having important synergies with the CBD but as a regional agreement includes more demanding provisions than contained in the CBD. The objective of the Protocol has been described as the protection of “rare and fragile ecosystems and habitats, thereby protecting the endangered and threatened species residing therein.”13 The lack of an appropriate legislative framework is the (generally accepted) reason why Jamaica has not yet become a party to the SPAW Protocol. Scope The scope of the drafting instructions for the SPAW framework includes:

• regulation of access to and transfer of genetic materials,

• protection and prohibition of the destruction of plant and animal species;

• regulation of the introduction, control and eradication of invasive species;

• registration of species of animal and plant, bird and fish attractions and persons who wish to collect these species; and

• expansion of the Schedules of protected species into Annexes.

The drafting instructions include the three Annexes as required under the SPAW Protocol. The Annexes contain prohibitions for the destruction of both plants and animals in the region and in Jamaica. Annex III allows utilization of species on a sustainable basis once a management structure is in place. These are all provisions important for the incorporation of SPAW into domestic law. There are fifteen Schedules under the current drafting instructions that include game and domesticated animals, protected animals and plants, protected birds and fish, alien invasive species to be regulated under the Act The drafting instructions do not seek to address all of the requirements of the CBD. They are an amalgamation of provisions that seek to incorporate a number of articles under the CBD and also the SPAW Protocol. Significantly the drafting instructions do not include a regime governing the protection of innovations and practices of indigenous peoples and communities relevant to conservation of biodiversity which are within the scope of the Convention. The instructions provide that permission to access genetic resources does not grant permission to use associated traditional knowledge and require that permission and prior informed consent shall be obtained from the person or communities with this knowledge. 13 http://www.cep.unep.org/cartagena‐convention/spaw‐protocol/overview‐of‐the‐spaw‐protocol

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The Drafting Instruction includes all collection, utilization and export of samples of genetic resources, material and derivatives both from in‐situ and ex‐situ sources for the purpose of bioprospecting. The proposed Wildlife and Protected Areas Bill excludes domesticated or cultivated species and restricts the definition of bioprospecting to activities conducted for commercial and industrial purposes. This definition does not include non‐commercial scientific research (registration will only be required for collection of these species). The Bill applies to all legal and natural persons from within or outside the jurisdiction of Jamaica and all government agencies and universities. The Wildlife and Protected Areas Bill is not clear on provisions to exclude access to genetic resources or material for customary uses of local communities; for the purpose of direct use or consumption; farming purposes; non‐commercial private and personal use. The instructions do not include provisions related to Biosafety. These Drafting Instructions propose to consolidate all provisions governing protected areas in Jamaica. They seek to incorporate all of the provisions governing protected areas from a number of different laws, NRCA, Beach Control Act, and Wild Life Protection Act and incorporate new powers over planning for the system of protected areas, and declaration of private areas for protection, zoning, fees, and management. These provisions do not take into account protected areas that can be declared under the Forest Act or the proposals in the new Fisheries Bill. It is proposed, in terms of roles and responsibilities, that the Natural Resources Conservation Authority under the auspices of NEPA will continue to administer and have primary authority over wildlife and protected areas. In order to achieve this outcome the Minister will need to appoint a National Biodiversity Committee with specific advisory functions under the Act. The NRCA would have jurisdiction over:

grant and refusal of collection permits and MTAs governing bioprospecting;

establishment of a gene bank or authorization of the conditions for the establishment of such a bank for the preservation of protected species;

the encouragement and development of scientific, technical and management oriented research on protected areas including their ecological processes and archaeological, historical and cultural heritage as well as on protected species and their habitats; and

compilation of inventories of reservoirs of biological or genetic diversity.

The proposed National Biodiversity Committee will need to have the singular authority to recommend or advise on issues associated with the conservation and protection of species and review of permits and MTA conditions. These drafting instructions provide that, in reviewing applications for access to genetic resources, the Committee shall:

apply the requirements for obtaining PIC and entering into mutually agreed terms;

recommend to the Authority for approval, refusal or suspension of permits or agreements; and

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develop a strategy for the effective participation of different stakeholders, as appropriate for the different steps in the process of access and benefit‐sharing, in particular, indigenous and local communities.

There is also a requirement that the Committee evaluate Prior Informed Consent for access to biological resources found on private land. There is a list of official members of the committee including government, private sector and NGO representatives. A subcommittee is defined with the responsibility to review applications. The instructions clearly provide that genetic resources (including micro‐organisms) and material of endemic plants and animals, their derivates that are not domesticated or cultivated are to be considered the property of the Government of Jamaica. The draft Wildlife and Protected Areas Bill also governs those genetic resources obtained from in‐situ and ex‐situ sources located in the Island of Jamaica and all waters up to the Exclusive Economic Zone. The instructions require that a bio‐prospector shall be required to submit written confirmation that they obtained the consent of private owners of land to obtain access to species on private land. The instructions further provide that a permittee may enter into benefit‐sharing agreements with such persons after a bioprospecting permit has been granted. To establish PIC an applicant for a permit must conduct the following where applicable:

Obtain the consent of private landowners or persons with a legal interest in the land where the genetic resources are found on such areas to enter on land and collect;

Obtain the consent of the Park Manager where the genetic resources are to be obtained from a national park, marine park or protected area; and

Obtain the consent from persons managing ex‐situ collections.

The Bill will therefore require that any application for a permit for access to genetic resources in Jamaica must enter into a benefit‐sharing agreement with each access provider for the resources. The instructions distinguish between access where the animals or plants for which access is sought for their genetic resources are on private land in which case the private land owner may negotiate a benefit‐sharing agreement but the Government must be a party to the agreement and share the benefits derived to be used towards conservation and management of the species. It is required that the agreement fit within prescribed requirements under the Act due to the fact that the Government owns the genetic resources of such species. This puts the burden on the permittee to establish access rights to the species on private land and ensure that any benefit‐sharing agreements from the grant of access must comply with the provisions of the Law. Benefit‐sharing to the private land owner under the Bill cannot be negotiated until after benefit‐sharing of the Government is established. There is therefore a clear reliance on the honesty of the bio prospector to reveal that species were found on private land and on clear provisions on the negotiation of benefit‐sharing agreements. The instructions outline a range of measures which may be included within the benefit‐sharing arrangements including research participation and publication, commercialisation, benefit‐sharing provisions, voucher specimens, technological transfer, and ownership of samples, fees or royalties, intellectual property rights, limits on transfers, exportation, and method of

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transport, reporting, and requirements for collection in collaboration with Jamaican institutions, agencies or persons. These are included within an Annex. A decision by the NRCA to grant or refuse a permit for access would only be made after scientific advice is given to the Authority on access provisions, proposed conditions on MTA agreements are agreed; and the sustainable use of the species is established by the Biodiversity Committee. The Bill recognizes the link with the Endangered Species (Conservation, Protection and Regulation of Trade) Act by providing that advice must be given by the Scientific Authority on sustainable use where a species falls under the Endangered Species (Conservation, Protection and Regulation of Trade) Act and a CITES export permit is required to be granted for the export. Offences are created to:

(i) obtain access to or export any genetic material of any species for commercial or industrial research without a permit;

(ii) wilfully mislead the public or the Authority with respect to the access application; and

(iii) breach the terms or conditions of the bioprospecting permit

… as required by the Authority under this Act. Any such person shall be liable on summary conviction before a Resident Magistrate to a maximum fine of $250,000.00. Finally, specific statutory application fees are outlined in the DI for requisite applications. The Wildlife and Protected Area drafting instructions seek to implement the access and benefit‐sharing provisions under the Convention. However from interviews with stakeholders there are still divergent views on the proposed scope of this Bill. A number of issues were raised including that:

• The use of a Wildlife and Protected Areas Act to incorporate provisions of the CBD currently excludes non‐wildlife resources, such as crops developed locally, and animal breeds. It was suggested that a single piece of legislation, whether as a part of an Act or a standalone Act should cover all resources;

• excluding an ABS regime for traditional knowledge associated with biological diversity from the Bill is not a comprehensive approach to implement the CBD and would reduce necessary synergies;

• the development of the Wildlife and Protected Areas Bill should await the resolution of the international regime that is being developed that is the international protocol on access and benefit‐sharing;

• Implementation of SPAW and elements of the CBD together is perhaps too broad a mandate and not manageable within the current realities and capacity of NEPA and that the focus should be instead on amending existing framework or other legislation through a single law or through more than one legislative enactment;

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• The Drafting Instructions do not provide a clear role for different agencies roles in conservation of biodiversity and in ABS e.g. the Forestry Department's current jurisdiction to provide guidelines for the conduct of research on forest lands and jurisdiction to grant permits to remove forest produce. Currently the role of the NRCA, agencies with overlapping jurisdiction and the proposed Biodiversity Committee needs to be clarified in relation to ABS;

• The current drafting instructions need to define more extensively the role of local communities in an ABS regime.

Fisheries Bill A new Fisheries Bill has been created to update the framework for management of fisheries in Jamaica. This new Bill is likely to have an impact on any ABS framework. Under the new Bill "Fish" is defined as any aquatic plant or animal, whether piscine or not, and includes any mollusc, crustacean, coral, sponge, holothurian or other echinoderm, reptile and marine mammal, its products, including their eggs and all juvenile stages thereof and by‐products; The Fisheries Bill provides for a new Licensing and Management Authority (LMA) to be created which shall be the principal agency of the Government of Jamaica responsible for the development, management, conservation and sustainable utilisation of all fisheries and other living aquatic resources of Jamaica. This Government Agency is given the jurisdiction to act to regulate the conservation and management of fish stocks and ensuring the viability of marine, coastal and aquatic environments. This Authority also has the obligation under the Bill to ensure the implementation of any international obligation under international law and international agreements to which Jamaica is a party and overall responsibility for any matter relating to fishing, related activities, fisheries resources conservation and the management and development of fisheries and aquaculture in Jamaica. The Bill includes specific provisions to regulate scientific research and requires any person, group of persons or vessel who is going to engage in scientific research which may impact the fisheries and associated ecosystems to apply to the LMA for authorization. Persons are required to submit to the Licensing and Management Authority a satisfactory research plan, and then the LMA is given the power to authorize in writing any person, group of persons or vessel to undertake aquatic scientific research and survey operations including fishing for such research or operations in the Jamaican waters and they may impose such fees as they deem fit. The process includes provision to consult the Fisheries Advisory Council to determine whether to grant an authorization. The LMA is provided the jurisdiction to exempt any person, group of persons or vessel from the requirements of any measures for fisheries conservation and management that may be prescribed or required by a fishery management plan. There is also a provision included that permits scientific observers to be allowed on board to participate fully in any research or survey project or to function in a manner as determined by the LMA on board the vessel and elsewhere; and copies of all data and information generated by the research or survey operations is required to be submitted to the Licensing and Management Authority at the

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completion of the operations or upon request during the course of the operations. The Bill provides that the results of the research or survey operations shall not be published or otherwise made available internationally without the prior agreement of the Licensing and Management Authority and be conducted subject to such other conditions as the Licensing and Management Authority may deem fit to specify. There is a specific prohibition against any person, group of persons or master, owner, operator of a vessel to assist in any scientific research in the Jamaican waters without authorization. The Bill also contemplates further regulation of scientific research as it provides that the Minister is given the power to prescribe the requirements for research, collection, provision and dissemination of scientific data. Proposals for new environment and planning legislation There are two recent studies proposing substantive reform to current environment and planning legislation in Jamaica. These may have a direct impact on any approach to implementation of an ABS regime in Jamaica. The first is a study entitled “Consultancy to Review Existing Environment and Planning Framework and Develop New Environment and Planning Legal Regime”14. This consultancy was intended to:

• review existing planning and environment policies, legislation and relevant documents including the work done to date on harmonization of environment and planning legislation;

• identify the issues and implications of harmonization of such legislation;

• make recommendations for interim and long term resolution of the conflicting issues; and

• prepare proposals for drafting instructions for the amendment or enactment of laws and regulations on the basis of the agreed position from the findings of the review.

The study unfortunately did not have a fulsome discussion of any specific approach to harmonization of natural resource conservation or biodiversity related legislation but rather focused on contemplated substantial legislative reform to modernize land planning and environment‐related legislation, reconciliation of conflicting legislation, and reform processes to achieve goals of both the National Land Policy and NEPA. The study concluded that as there are no Commonwealth country examples of merged environmental and planning legislation (United Kingdom, Australia, CARICOM) except for the New Zealand Resource Management Act (which had a number of complexities), and that this approach should not be adopted in Jamaica. Instead the study recommended the establishment of three (3) Acts:

The National Environment and Planning Agency (NEPA) Act,

a Revised Town and Country and Planning Act, and

The Environment Act.

14 Winston McCalla and Associates

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The study proposed that the Environment Act should repeal the NRCA Act and establish a new Act which would incorporate some of the existing provisions, but include updated provisions. The existing provisions of the Beach Control Act would be repealed and subsumed under this Environment Act. No guidance was provided on improving the legal framework for the protection and conservation of biological or other resources. The study is useful in its categorization of existing issues. However it does not examine any relevant legislative provisions in any detail which are pertinent to the terms of reference for the Biodiversity Add On project which is the subject of this report. Environmental Regulatory Authority Recommendations The most recent study proposing reform of the existing environmental and planning is currently being conducted. This conceptual stage has just been completed and it proposes the creation of a National Planning Authority and an Environmental Regulatory Authority (ERA). The ERA is proposed to have primary responsibility for environmental policing, compliance, monitoring and enforcement. Monitoring will include protecting Jamaica’s natural environment and biodiversity, and protect public health from environmental pollution. The roles and functions of new proposed agencies are summarized as follows:

• NEPA ‐ Responsible for the national spatial plan, administration, development control, quality control, park management etc.

• ERA ‐ Responsible for setting technical environmental standards, monitoring and enforcement.

Under the proposals, the ERA will have responsibility for beach control and coastal zone protection, watershed protection, marine conservation, pollution prevention and monitoring, pollution monitoring, Biosafety, wildlife protection and hazardous chemicals management. There are currently no substantive recommendations for the legislative framework at this stage.

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Section 6 ‐ Main Findings

Policy framework for ABS

1. The NBSAP provides a national situational analysis of Jamaica’s efforts towards conservation and assessment of its biodiversity and plans for implementation of the requirements of the CBD. However, the policy does not contain an approved consensus for the way forward in Jamaica to create a regulatory system on ABS for nationals and foreign researchers. A policy document will be needed in order to define the appropriate approach in Jamaica on ABS. The policy will need to take into consideration and resolve the divergent views that exist on the scope of the current drafting instructions on a Wildlife and Protected Areas Act.

2. The development of an international legally binding agreement on ABS should significantly impact the creation of national legislation in Jamaica. A clear policy decision must be taken whether the priority will be to develop and institute a legal framework which fulfils all the criteria of the proposed Protocol (that is whether decision‐making on new legislation should await the finalization of this international regime) or whether the current priority should be to develop and implement legislation that may not conform with the Protocol.

3. There is no evidence of a structured attempt by the Government of Jamaica to implement the Bonn Guidelines as an interim measure to regulate Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT).There is an immediate need, as an interim measure, to coordinate the grant of access to genetic resources in Jamaica through a bioprospecting programme that is based on a single and agreed contractual regime developed through implementation of the Bonn Guidelines.

4. The National Biodiversity Committee has not been reconstituted by the Ministry responsible for the Environment. The absence of an active Committee has resulted in a direct and negative impact on the coordination of activities to implement the Convention.

5. The development of finalized White Papers specifically in the area of scientific research and transfer of technology must be allocated a high priority in order to ensure the required clarity in policy positions and designation of roles and responsibilities of various agencies.

6. Significant effort should be made by government agencies to consult on cross‐sectoral policies prior to their finalization.

7. The establishment and proper functioning of a “Conventions Committee” as a coordinating secretariat could greatly assist in ensuring cross Sectoral coordination in the area of review and implementation of bioprospecting programmes and in the development of new legislation.

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8. A clear system to track implementation of policy decisions in each government agency is needed to facilitate accountability of implementation of policy decisions.

9. There is a current disconnect between the facilitation of implementation of the obligations under the Biodiversity Convention (NEPA) and public education responsibilities (IOJ)

Legislative Framework A far more robust and effective regulation of the activities that contribute to the continuing loss of Jamaican biodiversity and the implementation of effective protection of forests for the preservation of the ecosystem biodiversity are essential. These measures are pre‐requisites to both the development and the operation of any ABS regime.

1. Although there are a number of substantive provisions regulating the collection of species in Jamaica most of the legislation that exists does not clearly fulfil the obligations of the CBD. The current legislative framework is fragmented with gaps in ABS provisions and rules for the conservation and protection of biodiversity. Current legislation only regulates the collection of species in protected areas and prohibits the collection of designated protected animals. Plants have limited protection and are not regulated outside of protected areas or areas prescribed under the Forest Act. There are no provisions for benefit‐sharing within current legislation.

2. Administrative mechanisms have been utilized to regulate access to species. There are only a few documented cases of the use of material transfer agreements to facilitate benefit‐sharing. There is no evidence of consistency in the use of this approach across Government entities.

3. There are no legal provisions governing the collection of biological resources on private land.

4. There is uncertainty in relation to the granting of Prior Informed Consent and also in relation to the authority which is the national focal point with this responsibility as defined under the Convention.

5. There are a number of permitting systems regulating access to species. This requires applicants to make multiple applications often to multiple agencies, especially within protected areas.

6. A review of the most recent studies conducted to update and modernise the environmental and planning law framework in Jamaica demonstrates clearly the absence of agreed policy positions and decisions on the requirements for any new environment and planning framework. The development of a new Biodiversity Law is taking place as a separate activity and outside of this framework review. The future roles and relative responsibilities of NEPA, NRCA, the IOJ and other critical agencies have not yet been discussed, agreed and defined.

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7. Stakeholders who attended the consultations were broadly of the view that there has been a failure to put in place the necessary:

Human resources;

Financial resources;

Policies; and

Legislative measures and Regulations

which are each required (operating together) to ensure the protection of biodiversity. This failure has directly contributed to the unabated loss of irreplaceable biodiversity in Jamaica.

Marine Park Regulations ‐ the main gap in the regime governing regulation of access to

marine resources is that there are only three designated marine parks, (the Montego Bay Marine Park, Negril Marine Park and the Ocho Rios Marine Park), and there are few other rules governing collection of any living materials for scientific or commercial purposes. Collection of biological resources can occur anywhere outside of marine parks without any payment of fees or any form of regulation or public control. There needs to be a review of the definition of species under the Marine Park Regulations because the current schedule and description of species may likely exclude certain genetic resources which are of importance to collectors or of national value. The application procedure for a collection permit within marine parks must be amended to conform to the more comprehensive procedure found within national parks. There is a clear need to develop a standardised approach across the system of areas for which protection is deemed necessary. A regime has to be created that takes into consideration human resource constraints, current monitoring activities within the designated parks, public awareness, and the capacity to enforce access, regulations and prohibitions.

National Park Regulations and Forest Act and Regulations ‐ the main gap in the regime

governing regulation of access to terrestrial biological resources is the lack of any control over collection that occurs anywhere outside of national parks and forest reserves. Such collection can be done openly and without any resort to regulatory control or fees. The Blue and John Crow Mountains National Park is the one designated national park in Jamaica. There are almost 200 forest reserves and parcels of Crown Lands scattered across the country. A regime has to be created that takes into consideration human resource constraints, current monitoring activities within the park, public awareness, and the capacity to enforce prohibitions. Boundaries of these areas need to be well defined. The application process needs to be harmonized and responsibilities outlined for all the actors.

Forest Act – Guidelines on appropriate forest research practices must be created and

adopted in relation to biodiversity. These guidelines need to be outlined by the Forestry Department to ensure scientific and commercial bio prospectors currently understand

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the rules under which they can conduct bioprospecting in lands under the jurisdiction of the Forestry Department. A decision on the role of the Forestry Department in providing PIC and MAT in an ABS regime is needed based on their current capacity to monitor and regulate bioprospecting and proposed amendments to the Forest Act. The Forest Regulations clearly govern species collection within designated areas. There are however overlaps in jurisdiction between the Forestry Department and NEPA in terms of jurisdiction for ABS in protected areas and forest reserves and forest estates. Some species may require the acquisition of two or three permits (under the Wild Life Protection Act, Protected Area Regulations, Forest Regulations) and separate permits for export under Plant Quarantine laws.

Endangered Species (Conservation, Protection and Regulation of Trade) Act ‐ any new ABS

regime will have to build appropriate linkages to the institutional roles and responsibilities of both the CITES management authority and the CITES scientific authority, not solely based on regulation of trade of species but in relation to conservation and management of species as a result of the designation of the Fourth Schedule, and endemic Jamaican species under the Act.

Fisheries Bill ‐ there is a clear possibility of overlap between marine parks, protected areas

declared under the Beach Control Act, and regulation of scientific research under the Fisheries Bill. Regulation of access to marine resources will need to be coordinated to ensure an approach across the different regimes to control access to marine resources. The new Fisheries Bill establishes a Licensing and Management authority that will evaluate applications outside the terms of the drafting instructions for the Wildlife and Protected Areas Act.

Scientific Research Council Act ‐ there are a number of different Acts that include specific

reference to the regulation of scientific research over biological resources. Roles and responsibilities need to be established to understand the mechanisms needed in Jamaica to have an effective legislative framework to facilitate and regulate scientific research in this field. This will facilitate harmonization of processes on research that can lend itself to capacity building opportunities and appropriate benefit‐sharing from bioprospecting activities.

Current Legislative Approach An effective approach to ensure practical implementation of the CBD requires consideration of the most appropriate legislative framework. Specific implementing laws and regulations are needed. The considerations will need to take account of the necessary institutional framework and the integration of the varying roles and responsibilities of national institutions. A range of approaches should be considered and their advantages and disadvantages must be comparatively measured in the context of Jamaica’s long term goals for environmental conservation.

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Jamaica has historically always incorporated international agreements by way of re‐enactment rather than reference. This requires the development of detailed legislation which outlines national roles and responsibilities and addresses institutional and administrative measures within the law. There are, however, a variety of methods of developing implementing legislation that are possible in the case of incorporation of the CBD provisions on ABS. This report addresses five alternative approaches and sets out the main challenges associated with each. These have been set out below as follows:

1. introducing a single implementing law to govern implementation of the entire CBD

2. Introducing provisions specifically on ABS within environmental framework legislation

3. Introducing specific legislation on ABS only.

4. Modifying existing Sectoral legislation to incorporate ABS

5. Creating one legislative framework to implement more than one international treaty e.g. SPAW and CBD.

1. Single implementing Law

Introducing a single implementing law to enact the obligations of the entire CBD would require incorporation of all the obligations under the convention including requirements to conserve biodiversity, approaches for the protection of traditional knowledge, introduction of measures for sustainable use, inclusive of relevant provisions on protected areas etc. Benefits: This is the most holistic approach to implementation of any Convention. It has the benefit of allowing for a legal framework to be designed to specifically allow integration of international principles and concepts into the national jurisprudence. It also allows development of a comprehensive legal framework that can expressly recognize clear linkages between providing incentives for conservation and the sustainable use of biodiversity. This allows for the placement of biodiversity and conservation together providing a national agenda for the development of meaningful access and benefit‐sharing arrangements. This approach may allow the incorporation of international norms into local jurisprudence. Challenges: Creating a space and time to appropriately define roles and responsibilities under new legislation with shared prioritisation and input from partners and the public.

2. Environmental Framework provision

Introducing provisions specifically on ABS within environmental framework legislation would require defined provisions being placed within an environmental framework law

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which would then later be clarified through regulations. Regulations could be developed in parallel to allow effective implementation. Benefits: This approach would allow easy compliance with the requirement of article 15 and would allow flexibility in designing administrative requirements for access for the agency which is the focal point for granting PIC and MAT for access requests. Challenges: This approach will not define roles and responsibilities within Ministries and agencies of the State and will often be limited purely to a one dimensional access regime. Often with this approach it will require a number of years to fully implement all the requirements of the Convention in separate statutory provisions.

3. Specific Legislation on Access and Benefit‐sharing

Introducing specific legislation/regulations on ABS only would involve designing legislation solely to implement obligations under the Convention in relation to ABS and failure to include provisions on conservation, species management or protected areas.

Benefits: This approach may address access issues for defined species e.g. wild or endemic species vs. domesticated or cultivated species within a countries jurisdiction. It is a much simpler approach to access and requires fewer resources in the commencement of the process. It could allow time for further consideration of how to implement the entire convention into Jamaica’s national legislative framework and the implications of a protocol on ABS

Challenges: It is not a comprehensive approach; it does not solve cross jurisdictional issues or address the protection of biodiversity.

4. Modification of Sectoral legislation

Modifying existing Sectoral legislation to incorporate ABS includes and requires comprehensive cataloguing of all the legislation which will need to be amended to introduce an ABS regime and making appropriate amendments to each piece of legislation without creating one bill to implement all of the Conventions obligations. It also requires that there is a coordination of activities that will impact a number of laws and institutions to ensure that the necessary review of existing legislation occurs.

Benefits: This approach is time sensitive and simpler than attempting to complete development of a new piece of comprehensive legislation. Challenges: Often with this approach there may be a number of articles of the Convention which are not fully implemented. It is also often difficult to introduce quickly new decision‐making or internalising international norms into local legislation because of the variety of

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different pieces of legislation that need to be considered. This may also restrict judicial activism in interpreting legislation.

5. Comprehensive implementation of more than one International Agreement

This approach involves creating a single legislative framework to implement more than one international treaty (namely SPAW and CBD).

Benefits: This approach would entail continuing the current development of the Wildlife and Protected Areas Bill to incorporate the two international agreements into domestic legislation. This approach can have tremendous advantages for the implementation of Conventions which have similar objectives. In relation to the SPAW Protocol and the CBD, guidelines have been prepared by the SPAW Secretariat on how to develop legislation to implement both conventions. Challenges: The major challenge is to ensure harmonization of an approach to implement both international agreements and the time to create the necessary legislation that ensures adoption of all obligations within a comprehensive law. There appears to be no consensus on the optimal approach. From consultations and interviews with stakeholders there are a number of different challenges identified in reaching agreement and defining an approach:

• There is both endorsement and disapproval for the approach of comprehensive implementation of International Agreements. There is a recognition that this is probably the best approach for a small island jurisdiction committed to implementation of international agreements which have the same aims. Yet some interviewees expressed a feeling that this creates a too broad, perhaps unmanageable approach to implement all obligations under one law. This is due primarily to an assessment of the lack of capacity of current governmental institutions.

• There were concerns expressed that there are a number of synergies with the CBD and other Rio agreements namely the Conventions associated with Climate Change, and Desertification and that there should be an approach to design and implement a legislative framework that addresses the Rio Conventions together as Multilateral Environmental Agreements.

• Without a facility to engage key Ministries and Agencies like the Forestry Department and Fisheries Division there no longer exists a defined process for developing comprehensive legislation that requires a multi‐Sectoral approach. It was noted that an effective biodiversity committee needs to be in existence to define the approach and assist in finalizing drafting instructions

• The inertia in the legislative development process was often mentioned. Often interviewees were unable or unwilling to discuss which agency or individual was to

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blame for this inertia but the process of approval of drafting instructions and developing a Bill was described as arduous.

• There is no focal point for all CBD related processes and no coordination of representation at the international level that leads to national decision‐making process in the development of legislation. Discussion with stakeholders of positions to be taken at international meetings is non‐existent and reporting the outcomes of meeting is not occurring in a transparent way.

• There was reluctance to consider changing the current approach being utilized which was defined as amending an existing framework or other legislation through a single law or through more than one legislative enactment. Interviewees however recognized that harmonization of laws would be necessary no matter which option is taken.

• Laws on natural resource management are often not well written, difficult to understand, and completed without appropriate technical input from the best scientists in the field in Jamaica.

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Section 7 ‐ Conclusions

Legal Framework Scope of regime There are divergent views on the potential scope of ABS legislation and no current avenue for stakeholders to share these views. A policy document is needed on the scope appropriate for Jamaica. Some considerations are whether the ABS regime will apply only to wild species or domesticated species15 (Philippines and Costa Rica wildlife legislation apply to wild fauna and flora in contrast to Andean Pact Decision which includes both wild and domesticated species). Inclusion of domesticated species (for food and agriculture) has implication for benefit‐sharing under the Food and Agricultural Organisation’s International Undertaking on Plant Genetic Resources and will require cross cutting policies to be instituted and reviewed with agricultural policies in Jamaica16. A number of interviewees expressed the view that all genetic resources should be included within the ABS regime. Clarity will also be needed on whether derivates should be included within the regime. Derivatives have been defined as “material that is later bred, cultivated, or otherwise generated through some multiplication process in the user country’; or meta‐extracts, fractions or essences obtained from a plant, animal or other sample; a product or commodity that is created utilizing the genetic resource17 Definitions The CBD defines a number of terms which may be wholly incorporated in any new legislative frame work; genetic resources – “genetic material of actual or potential value”; genetic material ‐ “any material of plant animal, microbial or other origin containing functional units of “heredity”. These terms ensure that the legislation will cover seeds, parts of plants or even semen or DNA. Any new legislation should make it clear that it does not apply to human genetic resource. The term “Access” may need to be defined whether it will be restricted to bioprospecting, and whether it will include all territorial and marine areas. The definition may also place emphasis on taking samples or taking the whole animals, and the purpose for which the access is being sought. One definition used by the Andean Pact for access is “obtaining and using genetic resources conserved ex‐situ or in‐situ, derived products intangible components for research, bioprospecting, conservation, industrial application or commercial use”. Another option is to define bioprospecting instead of access. The Philippines Executive Order 247 defines bioprospecting as “research, collection and utilization of biological and genetic

15 The Convention provides the following definition for domesticated or cultivated species; “domesticated or cultivated species in which the evolutionary process has been influenced by humans to meet their needs” (Article 2).

16 Jamaica is currently a party to this convention having acceded in 2006.

17 “Balancing Building blocks of a Functional ABS system”

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resources for purposes of applying the knowledge derived therefrom to scientific and commercial purposes including investigative research and sampling”. Prior informed consent (PIC) The CBD provides that PIC must be obtained from the national government of the source country. However PIC can be granted at the national and local levels. A number of governments delegate elements of this responsibility to local entities and communities. PIC can be sought from:

• local and traditional communities ;and

• Those whose consent is practically necessary in order for the applicant to obtain access, e.g. land owners

In developing a legislative framework one needs to define:

“(i) the basis on which one can identify the groups and individuals that must give PIC;

(ii) the procedure for notifying groups and individuals that their input and consent has been requested, and

(iii) exactly how to determine that a group that has not incorporated into a registered company or other business has consented whether it be by virtue of single elected representative, provision of a contractual agreement in writing, or proof that there is an understanding of rights by the community”18.

Interviewees and participants at the public consultations held to inform the recommendations contained in this report generally agreed that the negotiating process should include multiple agencies with various stakeholders involved in defining PIC and defining benefits and benefit‐sharing processes. There was general agreement that the PIC process should be fair and equitable; recognize benefit‐sharing; allow facilitation at minimum cost; be transparent and have little bureaucracy and include the consent of stakeholders. There was some concern that benefit‐sharing must be defined within law and benefits prescribed in advance and not left up to negotiation to prevent corruption. Interviewees also expressed a preference for the Competent National Authority (CNA) or an appropriate implementation committee to assist communities to review requests and make informed recommendations. A determination needs to be made on what approach is appropriate for Jamaica. It should be noted that there is precedent for this as in the African Model Law in addition to requiring PIC from the CNA, requires the CNA to ‘consult with the local communities in order to ascertain that their consent is sought and granted’ (Articles 5.1, 5.3 and 7.3).

18 UNEP/CBD/WG‐ABS/5/4

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Genetic Access and Bioprospecting Application for access In every ABS regime there are provisions for an application to be made to obtain access to genetic resources. Usually specific information is required, and procedures for grant and refusal are included. Most interviewees suggested that in Jamaica there is a need for an application process which requires information on: species, locations, quantities, benefits to be derived, and the process of benefit‐sharing. Some regimes require the PIC of relevant stakeholders and/or that evidence of PIC is provided to competent national authority(ies) before the granting of the permit of access or signature of the contract of access (e.g. South Africa and Uganda). In addition, some countries have adopted different requirements for access depending on the type of applicant e.g. separate procedures for nationals and foreigners or for commercial verses non‐commercial applications e.g. Australia19 and Costa Rica. In Jamaica there was support from interviewees to adopt a distinction between commercial as opposed to non‐commercial research. Commercial applications were suggested to be scrutinized more closely since resources are being exploited for personal gain. Some countries, such as Ethiopia and Kenya and Uganda exempt research activities intended for educational purposes undertaken by national institutions from their ABS regime. Interviewees and participants at the public consultations noted that to keep the application process simple there needed to be developed guidelines for the various collecting activities, such as for molecular analysis, herbarium vouchers and reproduction for ex‐situ and in‐situ conservation (re‐introduction), so that species are collected with their threatened or potentially threatened status in mind, e.g. only seeds and/or cuttings can be collected and only limited numbers per individual and/or population. It was suggested that this would prevent local and foreign scientists from removing wild – and in some cases new and not yet described ‐ species from their habitat and their storage in improperly equipped facilities where the genetic material is likely to be lost. Traditional Knowledge Many countries also provide for the protection of traditional knowledge associated to genetic resources within their national legislative regime. In this case the PIC from the owners/holders of the traditional knowledge is required and outline in the law. Ownership of Genetic resources Ownership of genetic resources in Jamaica is defined by specific statutory provisions that outline the prohibition of ownership/possession of specific species and laws governing individuals’ property rights. Private property rights may be subject to government restrictions. Article 15(1) of the CBD specifies that the authority to determine access to genetic resources rests with national governments and is subject to national legislation. The Jamaican Constitution protects property rights and prohibits the taking of property without the provision of

19 Environmental Protection and Biodiversity Conservation Act 1999

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compensation. The common law establishes that the legal status of owned property applies to the ownership of flora and fauna in Jamaica. The proprietor owns all fauna and flora which can be collected on his/her property and if he/she catches wildlife on his/her property (subject to the Wild Life Protection Act) then he/she owns these wild animals. The new ABS regime will have to define property rights over genetic resources and the rights of an owner to provide clarity to bio prospectors. Access to Genetic resources ex‐situ and in‐situ An important decision is whether access to wild species of flora and fauna both found within in‐situ and ex‐situ sources will be regulated, and collection will require the authorization of the Government of Jamaica. Currently legislation only has specific provisions governing the collection of genetic resources from within protected areas and collection of protected animals. A number of different countries specifically regulate access to genetic resources located within protected areas. Nigeria and the Philippines specifically have provisions that prohibit bioprospecting in national parks without authorization from the State. It is not sufficient to solely regulate access to genetic resources within park systems as there may be other institutions which hold the countries genetic resources in ex‐situ conditions. Bio‐prospectors may also be interested in species in areas outside of specially designated areas. Some interviewees suggested that ex‐situ facilities must be guided by the same requirements for access whether they give access for scientific, research, education, conservation and non commercial purposes. It was also noted that there are currently no satisfactory ex‐situ facilities for plants and animals and local scientific institutions/universities are not interested in the practical aspects of ex‐situ conservation. Most biodiversity research and ex‐situ conservation takes place due to local/foreign collaborations. A number of ex‐situ collections of rare Jamaican plant species now exist abroad but not in Jamaica. Thus it was suggested that ex‐situ facilities should be specifically exempted from PIC requirements but subject to requirements for registration of species and CITES restrictions. It was suggested that these institutions should develop their own processes for approval of access to further possible collaborations. It was noted by participants at the public consultations that were held to inform the recommendations of this report that if the law becomes too restrictive in terms of requirements for access to species for scientific research in ex‐situ collections and in‐situ, scientific research will become impossible and that effort must be made to ensure that procedures are simple.

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Benefit‐sharing Mutually agreed terms (MATs) Until a Protocol is finalized between parties to the Convention it is likely that access agreements will be the main means for parties to establish mutually agreed terms. Legislation should govern which government agency is permitted to negotiate terms on access on behalf of the Government of Jamaica and also enter into an access agreement. This is dependent on an understanding that these agreements must be both monitored and enforced and there must be consideration of the need to respect and preserve and maintain the knowledge innovations and practices of indigenous and local communities20. Article 15(4) of the Convention provides a condition that access to genetic resources must be provided on mutually agreed terms between the party in possession of the genetic resources and the potential user. In a number of countries including Costa Rica there are different types of agreements that are used to regulate access and provide opportunities for benefit‐sharing including Material Transfer Agreements (MTAs), Research Collaboration Agreements, Commercial Agreements, and Memoranda of Understanding. Legislation may also establish the right of a government authority both to negotiate access in association with permits or other agreements that allow research, collection and export. Material Transfer Agreements21 These are template standard agreements for access in which there is usually no specific benefit‐sharing mechanism, with the conduct of scientific research being expected. These agreements often include provisions on transfer to third parties, provisions on non–commercialisation, useful in cases of loans for inventory taxonomy. These agreements may also be used in the context of research collaborative agreements to transfer specimens within set time frameworks.

Research Collaboration Agreements22 These agreements usually define the scope of collaboration in general terms. They could be short term agreements in which case a work plan has to be included or long term collaboration agreements which usually involve work plans as addenda. They may establish strict protocols and one may have to rely on MTA’s to transfer specimens. It is recommended that there should also be the signing of a Confidentiality Agreement to ensure that ideas are not stolen. These agreements usually involve benefit‐sharing and all terms of agreements of the parties. Confidentiality agreements are very important when negotiating collaborative research agreements. Their purpose is to protect each party’s ideas and proprietary information and

20 ibid

21 Description of terms are taken from the Draft Bioprospecting Programme for Jamaica Carole Excell, Tracey Commack and Trevor Yee, 2005

22 ibid

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promote the protection of the business and goodwill of the parties to the agreement. These should be signed prior to beginning of any research collaboration agreement. Memoranda of Understanding23 A MOU is usually a very general agreement, which may be followed by a Research Collaboration Agreement. Often MOU’s are not legally binding unless they have specific terms that show that there is an intention by both parties to be legally bound. Benefit‐sharing provisions24 There are many types of benefit‐sharing provisions that may be included within MTA’s. These should include the following: Monetary benefits:

Access fees, e.g. per sample,

Upfront payments (e.g. for conservation, salaries, joint ventures),

Milestone payments (anticipated payments for set stages of commercialisation),

Royalties received after commercialisation (based on product net sales, gross margins compliance or gross sales with or without trade discounts), and

License fees in case of commercialisation.

Non–monetary benefits:

Sharing of research results, collaboration in scientific research,

Participation in product development,

Information sharing and access to databases,

Strengthening local capacities for the sustainable use of genetic resources,

Education and Training,

Technological Transfer,

Institutional capacity building, and

Human resources and transfer of equipment.

Critical to completing the process of negotiating of bioprospecting contracts is obtaining benefits. The Convention requires in addition that any benefits obtained must be shared. Agreements can provide for benefit‐sharing with the State, or with indigenous and local communities or other resource providers, or both. Section 8 of the Australian Regulations provides different requirements for access to biological resources for commercial and non‐

23 ibid

24 ibid

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commercial purposes. Where a permit of access is needed for commercial purposes there is a requirement for PIC of owners of the land and a benefit‐sharing agreement with each access provider for the resources. With non‐commercial purpose requests for access, there is a requirement for only written permission of access providers and a copy of a statutory declaration given to each access provider declaring that the applicant does not intend to use the biological resources for commercial purposes and undertakes to give written report on results of research, to give a taxonomic duplicate of each sample, not to transfer any sample without permission of each access provider and not to carry out, or allow others to carry out, research or development for commercial purposes on any genetic resources or biochemical compounds. In some countries, the agreement containing benefit‐sharing arrangements is negotiated by the competent national authority (ies) while in others; the competent national authority (ies) is only to approve the agreement negotiated by indigenous and local communities or any relevant stakeholder and the applicant. It should be noted that many countries also provide that owners/holders of traditional knowledge associated to genetic resources shall get a share of benefits arising from the use of their traditional knowledge. Types of Benefit Some countries provide within legislation the type of benefits that can be negotiated. In General, these are divided into monetary and non‐monetary benefits (capacity‐building, access and transfer of technology, and for monetary benefits derived from the commercial utilization of the resources accessed through the sharing of royalties). The Ad‐hoc Access and Benefit‐sharing Working Group UNEP identified a number of different options:

• involvement of local citizens or institutions in the research, collection and the technological development of the products derived from the biological and genetic resources. Bolivian Regulations, section 42 (b); Kenyan Regulations, section 20 (1); Malawi Procedures and Guidelines for Access and Collection of Genetic Resources, sections E(2) (3) and H (1);

• collection of flora and fauna species or other biological resources for scientific research purpose and require that the results of the investigation be available to the public subject to the terms and conditions established in the Official Mexican Standards NOM‐126‐SEMARNAT‐2000 while, for a biotechnological purpose, it is subject to a fair sharing of benefits derived with owners and legitimate holders of resources: Mexico Environmental Protection Law, sections 87 and 87 BIS.

• intellectual property rights in the context of benefit‐sharing through the sharing of royalties (Brazil, Bolivia) or provide that the agreement is to recognise the joint ownership of intellectual property rights. The Provisional Act of Brazil also mentions that research on genetic resources should preferably be carried out on Brazilian territory (section 16 (7)).

• requirement that the interested party should deposit, for basic research or bioprospecting, up to 10 % of the research or bio‐prospecting’s budget and, for

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occasional or regular economic exploitation, to pay up to 50% of the royalties obtained. (Costa Rica, Biodiversity Act, Section 76 and Decree on General Rules for the Access to Genetic Resources, section 9 (4)(5)).

• a minimum amount of 2% of total global gross sales of the product(s) made or derived from collected samples to be paid annually to national government and resources providers for as long as the product is sold (25% to the government and 75% to the providers) (Guidelines for bioprospecting activities in the Philippines, section 16).

It was suggested by one interviewee in Jamaica that benefits should be specifically prescribed by legislation. Mechanisms for sharing benefits Most interviewees suggested that the best approach to ensure transparent uses of benefits was the creation of a Trust fund. Participants at the public consultations held to inform the recommendations of this report indicated their strong support for the creation of a Trust Fund so as to ensure transparent uses of the benefits received. This fund would be created in recognition that biodiversity legislation speaks to:

• sovereign rights of the people of Jamaica over the biological and genetic resources within their national territory,

• conservation, reproduction, enhancement, maintenance, management and

• sustainable use of biological and genetic resources, and recognition of the vital role of communities play in generating and enhancing biological diversity and related knowledge, intellectual practice and culture.

Interviewees suggested that funds earned from fees as well as benefits derived from MTA’s should be paid into the fund and exclusively reserved for payments for ex‐situ and in‐situ conservation in Jamaica. There was also support for directly placing within the legislation a percentage of the benefit shared by the State in the form of money from the benefits derived out of the utilization of their genetic resources which would be paid to local communities and a percentage for conservation. It was proposed that necessary provisions for investment and use of such funds and managerial responsibility may also have to be prescribed. Organisational framework Regulation of access by a Competent National Authority Currently there are a number of different government agencies with a wide range of overlapping responsibilities concerning the management of Jamaica’s biodiversity. Although a number of governmental institutions may share responsibilities to carry out the conservation of biodiversity and must work in tandem to meet the larger objectives of the Convention, for facilitation of access to genetic resources there needs to be a specifically designated lead agency to ensure the establishment of the systems for PIC and MAT. The Convention encourages parties to prescribe a legal designation of Jamaica’s competent national authority

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for determining and regulating access to genetic resources and negotiating benefit‐sharing under the CBD to facilitate access. Most countries laws contain a clear statement designating (or empowering the designation of) specific national authorities for ABS applications within the country. In Decision 391 of the Andean Community (CAN Decision 391), there is a requirement for the designation of a national Competent National Authority (CNA) and delegation to the CNA of comprehensive oversight and decisional authority. Decision 391 requires that all contracts must be executed, on behalf of the government involved, by the CNA, which must be a state agency or public institution. This is also true of the Costa Rica, ABS Regulations, Article 5 and the Indian, Biological Diversity Act (Articles 8, 18 and 22). This approach is recommended as it creates predictability and clarification of roles. It also facilitates easier administration of permitting systems as it allows the applicant to go to the correct authority immediately with clear rules on the appropriate ABS procedure to comply with. Practice differs in a number of countries of whether to create a new agency or use an existing one. Some choose a general environmental body such as in Kenya, while others create a specific body to address biodiversity such as Costa Rica and India or there are those who create a new organization solely for access and benefit‐sharing issues like Brazil. From the interviewees there is clear support for designating the competent national authority to an organization already in existence in Jamaica rather that creating a new organization to administer access and benefit‐sharing measures. Participants at the public consultations held to inform the recommendations of this report indicated their significant support for the idea that there should be ‘one window’ for the considering of applications for access. There was no clear agreement however among interviewees and stakeholders which agency should act as a competent national authority to negotiate access and benefit ‐sharing arrangements. Answers ranged from NEPA, Jamaica Intellectual Property Office (JIPO), to the Conventions Committee and the Ministry of Foreign Affairs and Foreign Trade. Monitoring and compliance There have only been a few different types of measures created in various countries to conduct monitoring, reporting, enforcement, infractions/offences, penalties/sanctions and dispute resolution. These mechanisms include the appointment of inspectors, the involvement of civil society for monitoring purposes and reporting requirements imposed upon users. Sanctions are included within most legislation for any unauthorized access to genetic or biological resources; the non‐respect of the clauses of an agreement related to access and benefit‐sharing; giving false or misleading documents or information for the purpose of obtaining a collection permit; and obstruction of an inspector in the exercise of his powers or duties. In Australia, under the Environment Protection and Biodiversity Conservation Regulations, section 8A.18, the permit holders must keep records of samples taken. The Biodiversity Act of the State of Queensland, in part 8, includes elaborate provisions on monitoring and enforcement. It provides for the appointment of inspectors and details the powers and duties of these inspectors. Costa Rica, in article 20 of the Decree, provides that the Technical Office will carry out verification and control duties through inspections on the site where access is granted. In Ethiopia, section 20 of the Proclamation also provides that the CAN shall follow‐up the

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execution of access agreements through, inter alia, inspection and periodic progress and status report by access permit holders and the relevant institutions designated to accompany the collection, participate in research, and monitor the implementation of access agreements. In the case of the Philippines, the Bioprospecting Guidelines, under section 27, indicates that the Government encourages the role of civil society in monitoring the implementation of bioprospecting undertaking. It also states, under section 23, that the resource user shall submit an Annual Progress report to the implementing agencies concerned. Finally, section 27 mentions that some departments of Philippines may help implementing agencies in monitoring inventions and commercialisation undertaken in foreign countries through, inter alia, Embassies and Missions. The Ugandan Regulations, under section 7(3)(b), states that lead agencies, in collaboration with the CNA, shall monitor “the application and use of genetic resources transferred from Uganda and deposited outside Uganda”, but does not provide any other detail in respect to the manner or the mechanism. Sanctions Sanctions in different legislation vary. Legislation has included a written warning (Brazil, the Provisional Act), to a scale of fines (Indian Biological Diversity Act), a seizure of samples (Brazilian Regulations), the suspension of the sale of product (Costa Rica), the revocation/cancellation of the permission or license of access or of the agreement (Panama, Decree), a ban on undertaking prospecting of biological and genetic resources and imprisonment (Kenyan Regulations, section 24). In South Africa their Act provides for a higher fine when offences involve specimen of threatened or protected species while in Brazil they also require a higher fine in case of violation committed by a corporation. The Philippines legislation is one of the few that includes provisions for dispute settlement mechanisms. Finally some countries provide designated judicial bodies to have the jurisdiction to hear disputes related to the ABS regime. Interviewees proposed that sanctions should included payment of compensation based on (in commercial cases) a percentage of the value of the profit that could be assessed from utilization of genetic material for research and revocation of the consent where appropriate. Criminal sanctions also were accepted as appropriate for illegal export of genetic material. Certification of legality of export The Costa Rican Decree (Article 19) provides that a certificate of origin is to be issued by the Technical Office of CONAGEBIO certifying the legality of access and the observance of the terms set out in the access permit. Some countries, such as South Africa, require a permit to export specimens obtained from bioprospecting (South African Biodiversity Act). In Jamaica a number of interviewees suggested that Jamaica should adopt a certification process once PIC has been obtained for permission to export.

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Section 8 ‐ Implementation Considerations

Coordination of effort for implementation Challenges: The development of an ABS regime for biodiversity requires a multi‐sectoral approach. This approach is not being implemented in practice because of the lack of an effective coordinating committee on biodiversity. In addition an inter‐agency approach has many inherent problems such as difficulty in getting a quorum of the members, irregular attendance of members, and the problem of coordination. One organization cannot implement all activities within an ABS regime as there needs to be designation of diverse responsibilities including roles to monitor and enforce collection activities (particularly in remote areas); ensure negotiation of MTAs; regulate trade requirements; and engage local communities. This must be achieved without creating a burdensome ABS regime. Factors for Success: It is possible to learn from other countries on how to ensure an efficient process for intergovernmental cooperation both in developing a framework and implementing new systems. Good models can be found in the Scottish Biodiversity Committee with its detailed processes for consultation, transparency and reporting25 and determination of clarity of roles and responsibilities and in Australia with the current review and reform process of their Biodiversity Law26. Capacity Building Challenges: To fully implement an ABS regime there needs to be capacity built in a number of different areas. Technical expertise in various scientific disciplines is needed for the development of an ABS regime. In addition training is needed on the Bonn Guidelines. Factors for Success: The necessary expertise does not lie solely within government or solely within civil society. It is suggested that the creation of a local database of professionals with this area of expertise is completed in consultation with environmental professionals. Persons with specific relevant expertise should be asked to participate both in policy and legislation development. As it relates to legal expertise capacity development initiatives to enable an understanding of international agreements are available through UNEP and should be accessed

25 (www.itercad.org/Interface‐16GB.pdf)

26 http://www.environment.gov.au/epbc/review/publications/pubs/fact‐sheet‐2‐conclusions‐and‐recommendations.pdf

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by government attorneys. Also efforts to ensure government attorneys can negotiate appropriate equitable and enforceable contracts and to take action for violation of contractual agreements within national or international law are needed. Lastly the negotiations of the new international regime on ABS may require the Clearing House Mechanism to play a greater role in providing officially sanctioned information about contractual agreements and evidence of mutually agreed terms. The capacity of the clearing house to take on this role needs to be determined. New Systems/Structures Challenges: Developing an ABS regime that does not create complex bureaucracies will take clear leadership and thinking out of the box in Jamaica. This regime will require moving into new markets and having value added projects and products to market, it is therefore likely that investment in technical and scientific skills are needed to make this a reality. Factors for Success: Creative methods to find the necessary financial resources for implementation of proposals in this area will have to be found to create these new structures. Policy Challenges: Different sectors use genetic and biological resources in vastly different ways and there may be a need to adopt different tools for access and benefit‐sharing associated with these resources within a broad framework ABS regime. Factors for success: Coordination of policy development is needed at the level of the Office of the Prime Minister. If a broad approach to development of a Biodiversity law is adopted then it will be critical to define the necessary tools for access and benefit‐sharing within Sectoral policies. Developing a new legal framework Challenges: Current priorities seem not to lie in developing an ABS regime but in developing a fulsome environment and planning framework. Thus, Legislation is being reviewed in isolation, e.g. Forest Act and NRCA Act, Fisheries Bill without consideration for the specific nature of the regime needed for comprehensive biodiversity protection and ABS. In developing the framework it must be borne in mind that complex layered schemes which require multiple permits can result in a decline in research and deterrents to bioprospecting. Factors for success: Current projects reviewing an overarching legislative framework have not considered fully the development of appropriate legislation on biodiversity. These projects have the potential to hamper timely development of new biodiversity legislation. The development of a Biodiversity law needs to be incorporated into the development of a new regime for environment and planning legislation taking into consideration current bureaucracies.

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Leadership Challenges: There needs to be a clear leader(s) to drive this process or a lead agency in relation to biodiversity. Since the completion of the NBSAP, there has not been a clear person taking a leadership role to finalise a new legislative framework. Most interviewees concluded that they only had a limited role to play in respect of the Biodiversity Convention and its implementation and did not see it as a part of their core job. Factors for Success: Succession planning for leadership in specialized areas is needed. Persons need to be identified to take on leadership roles in this area in a number of agencies and they need to be supported in their personal development. Public Research Challenges: Provisions of any law over genetic resources should also philosophically seek to promote public research using relevant genetic resources. Perhaps more importantly these provisions should not conflict with any provisions on ABS. If conflicting provisions arise this may hamper the negotiation of mutually agreed terms. Factors for Success: Involvement of the agencies in scientific research and development in the preparation of an ABS legal regime that incorporates the required elements to support the development of scientific research will be a key component for success. Public involvement Challenges: Public involvement in government process can often seem time consuming and difficult for public servants. Financial resources are often limited to facilitate public consultation and input. Factors for Success: It is vital to involve the public in the development of an appropriate regime for biodiversity and the international negotiating process. This can ensure buy in, acceptance, improved success in implementation and enable the creation of a better and more accountable system.

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Section 9 ‐ Recommendations

This section of the report sets out recommendations to create a practical impact in terms of the development of an ABS framework that is realistic and achievable and which can be effective in Jamaica. The recommendations have been based on the findings and, in particular, drawn from the conclusions described above. Policy A policy to define the appropriate approach in Jamaica on ABS must be developed and agreed as a matter of urgency. A policy document is needed to define the appropriate approach in Jamaica on ABS taking into consideration the divergent views that exist on the scope of the current drafting instructions on Wildlife and Protected Areas. This document should explain the decision‐making process for defining the scope of the Law. A policy analyst should be hired or assigned responsibility by the Office of the Prime Minister to assist in defining responsibilities of the member agencies and clarifying the current fractured policy framework. A structured process to ensure public participation and transparency must be established and put into operation. Public involvement in the development of an ABS regime for Jamaica is critical to ensure accountability. A process needs to be defined to include public input into the process at all stages by the Ministry responsible for the Environment. This can include consultation on the negotiation process, inclusion of representation on relevant committees, opportunities for consultation and comment and provision of information on achievements, progress and responsibilities. Legal Framework Clear and effective laws to ensure implementation of the Conventions objectives must be developed. Effective regulation of an ABS regime governing Jamaica’s genetic resources requires clear and effective laws to ensure implementation of the Conventions objectives. A number of laws must be designed to work in tandem to ensure a coherent framework for an applicant who wishes to apply for access to genetic resources. The Drafting instructions for the Wildlife and Protected Areas Bill need to be reviewed by the Ministry responsible for the Environment in association with the Attorney Generals Department and NEPA with a critical eye given to the scope of legislation needed to fully implement the CBD into local legislation and its impact on other relevant legislation. A number of government agencies will need to work together to create a law to implement the CBD and also design clear systematized procedures for application of requisite permits for all

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types of genetic resources. It is therefore recommended that the biodiversity committee is reconstituted to carry out this mandate, by the Ministry responsible for the Environment. The current methodology adopted to develop the Wildlife and Protected Areas Act is a combination of more than one approach that is preparing legislation to specifically incorporate an access and benefit‐sharing regime under the CBD and also incorporating the SPAW Protocol into domestic law. Unfortunately the current drafting instructions do not provide comprehensive provisions for management of all types of biodiversity or protection of traditional knowledge. It is recommended that the Committee work to create a Law that incorporates obligations of both the SPAW Protocol as a regional agreement and the Biodiversity Convention into one Law. The scope of this framework needs to be clearly defined taking into consideration other relevant legislation and an approach to implementation of similar obligations. The Attorney Generals Department should be asked to give a legal opinion on how to ensure the new legal regime includes legal certainty and clarity of rights (property rights and ownership) to genetic material. The analysis of current organisational, financial and technical capacities of government agencies contained in this report should be utilised to assist in determining the scope of a Bill that can be practically implemented. The International Protocol to create an ABS framework has not yet been defined and this will have a direct impact on any domestic legislation to be developed. The Jamaican Government needs to ensure they participate in the process of development of this International Agreement. Appropriate personnel need to be designated by the Ministry responsible for the Environment to attend the international negotiations to increase their capacity and understanding of this international agreement. The key negotiator should be assigned a specific role in the development of the local Biodiversity Law to comply with these requirements. A specific draftsman should be designated by the Parliamentary Council to assist in the development of the appropriate legislative framework. The Ministry responsible for the Environment must declare a national focal point for Prior Informed Consent (PIC). There is an urgent need for the Ministry responsible for the Environment to declare a national focal point for PIC. The necessary steps must be taken to ensure that the Focal Point has the necessary resources and institutional capacity to take on a leadership role in implementing the requirements of a Biodiversity Law. The role must include the authority and capacity to conduct negotiations and define legal agreements on behalf of the nation.

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Organisation Framework A new or reconstituted inter agency committee must be mandated by the Minister responsible for the Environment. A clear mandate from the Minister responsible for Environment is needed for a new reconstituted inter agency committee. The Committee needs to be formed with strong leadership, civil society participation and some resources allocated to finalise and define a process that will be effective in Jamaica and consider the current legislative proposals and assist in the finalization of drafting instructions. There is a need for the Ministry responsible for the Environment to re‐evaluate the effectiveness of agencies in the protection and conservation of biodiversity, the regulation of scientific research, the conduct of public education, current bureaucracies in procedures to apply for permits, international negotiations and the determination of PIC and MAT for current regulatory process utilising the reports from this project. An appropriate leadership role should be designated at a high level for one civil servant or public officer to drive the process of the re‐establishment of the committee to coordinate activities under the Convention. A trust fund for biodiversity support must be established and put into operation. Options to seek funding by government, joint proposals between government and private institutions or government and civil society need to be discussed and supported and created. This process can include discussions on the development of a trust fund for biodiversity. This could be coordinated by the Planning Institute of Jamaica; the Scientific Research Council; the Environmental Management Division of the OPM or NEPA. A single process for applications and permit issue, associated with an online database accessible on the internet must be created. This is a need to improve the basic structure to monitor compliance with current processes for granting PIC including the development of a database of both permits, agreements signed, scientific research collaborations and resources accessed in the past. The requirements are for the development of a single and set of processed, procedures organisational handling and forms. This new system should be developed alongside an internet based database and associated access mechanism to ensure the integration and ease of dissemination of the information generated from research, collection, and utilization activities. The Institute of Jamaica, the Scientific Research Council, UWI, and NEPA and other relevant agencies will need to meet to discuss the creation of this database, the associated processes, standard operations procedures, forms, regulations and all the required support human and institutional resources needed to ensure its reliable operation, effective use, ongoing accuracy and currency and the ongoing maintenance of the data.

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Interim Bioprospecting programme A new reconstituted inter agency committee should be established. A new reconstituted inter agency committee should be set up and given the responsibility to review the Draft Bioprospecting Programme and determine whether it should be finalized and adopted as a programme that can lead to the actual coordination of an interim ABS regime. This Programme can help clarify roles and responsibilities of key agencies including the National Land Agency, the Forestry Department, NEPA and Protected Area Managers in the development of a practical ABS regime. There should be training on the use of the Bonn Guidelines to regulate access to, and benefit‐sharing from bioprospecting based on contractual common law principles (MTAs). These can be legally enforced for protected species under the Wild Life Protection Act and species from within protected areas and in other designated areas e.g. Forest reserves.

Attachment 1 Implementation Activities and Broad Time Lines

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The assumption made in preparing the initial targets for completion is that the implementation will start in April 2010 – following consultations are completed on recommendations and they are accepted. The plan below is indicative and will need to be re‐examined after the recommendations have been reviewed and agreed by the main stakeholders. Any changes in these will significantly affect the plans.

Activity Duration Target for Completion

Responsible Organisation

Indicator of Achievement Remarks

1. Establish Appropriate Finding for Implementation of the Plan Ensure allocation of funding by each agency to carry out requirements of plan

2 mths April 2010 OPM Funding allocated

Develop funding proposal for activities to be submitted to BSC

4 mths August 2010

All agencies & BSC

Proposals developed and submitted to funders

Joint funding proposals between NGO’s and government should be encouraged

2. Appointment of New Biodiversity Steering Committee Develop TORs for Committee

3 mths. May 2010 OPM TORs finalised

Establish funding for committee operations

1mth May 2010 A budget must be allocated even if it is small for the committee to utilise and secretariat functions

Ask for comments on TOR and necessary membership

2 weeks June 2010 OPM Comments received Public Participation on the formation and chairmanship of the committee is important to raise the profile of the committee and ensure trust and participation from civil society

Appoint Committee 2 mths. August 2010

Prime Minister Convened Committee meets Committee should include private sector and civil society rep and skill sets important for preservation of traditional knowledge

Determine leadership of Biodiversity implementation plan

1 mth August 2010

OPM Leadership confirmed Must be a senior public servant within the public service who takes the leadership role to have the plan fully implemented.

Determine chairmanship

1 mth August 2010

OPM Chairman confirmed Publicity of appointment of chairperson is needed and convening of committee

Implementation Activities and Broad Time Lines

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Define arrangements for governance, transparency and accountability of committee

1mth August 2010

BSC Reporting and transparency determined

Publication of minutes of meetings of this committee, attendance and reporting requirements are key to build trust

3. Policy Development Review and approve Interim Bioprospecting programme

2 mths June 2010 BSC Programme reviewed finalized and approved

This Programme is to create an interim measure to regulate ABS. It is needed until a new legal framework is established.

Convene meeting with agencies and organizations relevant for scientific research in Jamaica

2 mths June 2010 Ministry responsible for Science policies

Meeting convened and results obtained

SRC/OPM/NCST/Biosafety Committee/ to be included in discussions on the framework for regulation and incentives for scientific work

Create policy document to explain decisions on scope of law

6 mths October 2010

OPM Policy document prepared Policy developed and completed is a prerequisite to the review of Laws as set out below

Make decision on focal point for CBD and send out advisory to agencies and public

2mths December 2010

OPM Focal Point decided and appointed, Advisory sent

Review permitting procedures relevant to access with relevant agencies

4mths December 2010

OPM to lead

New Permitting process dev eloped

This may be done at the same time as the Bioprospecting programme is reviewed. NEPA/ Fisheries/ Protected Area manager/Forestry/ Scientific agencies/ Agencies involved in export of species must be involved

Obtain Cabinet Approval for creation of Trust Fund for Biodiversity

2 mths February 2011

OPM Approval obtained If trust fund will be included within scope of the law this may delay the creation of the trust fund. This should be determined in the scope of the Bill

Create concept note on creation of the fund

2mths April 2011 OPM Concept Note finalised

Agreement with potential funders

6 mths October 2011

OPM Meeting (s)held Relevant government agencies and NGOs agree and provide funding for Implementation


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Determine how fund will operate and consult with public

6 mths October 2011

OPM Consultation held

Assign Policy analyst to work on policy issues

1 mth November 2011

OPM Policy analyst assigned

Finalise draft policies and present to Cabinet

3 mths February 2011

Relevant agencies

Polices approved by Cabinet

Ensure completion of Science and Development policies into Green Papers

2 mths April 2011 Relevant agencies

Policies finalised

Complete consultations on green papers

3 mths August 2011

Relevant agencies

Consultations held

Present policy to Parliament to become White Papers

4 mths January 2012

Relevant agencies

Policy approved It needs to be clarified whether the Science and Technology policies will all be proposed as White Papers.

4. International Negotiations Review participants to COP and Expert meetings

2 mths August 2010

OPM Participants determined It is not clear whether the OPM or Ministry of Foreign Affairs designates persons to attend Expert and COP meetings. Clarify and create a list of designated participants which is available for all to know who is attending which meetings.

Ensure regular reporting of results of meetings from participants

1 mth September 2010

OPM Reports on meetings attended collated

Progress at international meetings must be documented and reported to the BSC.

Provide information to the public on next relevant meetings and Jamaica’s position on issues to be discussed


OPM Persons assigned to provide information

This is now standard practice in many countries. Alongside publication of the official views of the Government on the international process and there participation. The OPM, CHM and/or NEPA website(s) can be used

5. Approval of Biodiversity Implementation Plan Finalise Draft implementation plan

2 mths. May 2010 Implementation plan completed by Consultants

Critical to ensure that the plan meets the needs of the committee


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Circulate implementation to all government agencies and Biodiversity Committee for comment and the public via website

1 mth August 2010

OPM Plan on website Plan circulated

The CBD Committee needs to comment and help finalise the plan. The plan and report should be circulated to all Ministries and sent to specific agencies to obtain national buy in.

Incorporate amendments


OPM Amendments made The plan must be logically structured according to targets agreed by the agencies which are responsible for implementation

Send implementation plan to cabinet for approval and determine reporting requirements of Committee to Cabinet

2 mths. October 2010

OPM Cabinet approved plan and reporting requirements determined

A reporting schedule is needed to ensure accountability of committee

Publish implementation plan

1 mth November 2010

OPM/ NEPA / IOJ and all other relevant agencies

PDF of Plan published on internet

Plan can be published on the internet and distributed by Forestry and Local Government and put on various Ministries websites to show government intention as a whole to implement plan

6. Develop and Complete training on Bonn Guidelines of government officials, protected area managers and other representatives Define and scope 2 mths July 2010 OPM & NEPA. Budget allocated Government or donors need to be sourced to

provide training Funding Secured 1 mth August

2010 OPM & NEPA. Determine funding sources

Select and appoint trainers


OPM & NEPA.

Prepare material 3 mths December 2010

Consultants Material prepared Material must be practical and delivered by Experts in the field

Plan sessions 2 mths. February 2011

Consultants Sessions planned Practical Training must be delivered


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Deliver sessions 6 mths August 2011

Consultants Sessions delivered Number of sessions to be determined by critical agencies in permitting and regulatory process and relevant stakeholders

7. Regulatory Framework for Review completed and Drafting instructions finalized and submitted to Chief Parliamentary Counsel Review Wildlife and Protected Areas DI NEPA &BSC Determine scope Make determination of scope after policy

documentation finalised Finalise Forest Act DI 6 mths Forestry Dept

& BSC DI completed Depending on timetable of Ministry this may need to

be made a priority Consultations 2 mths OPM/NEPA Consultations on new law

completed

Draft law 3 mths Consultations 3 mths Passage 12 mths

Dates for all activities dependent on policy framework completion

Review Fisheries Bill OPM Fisheries Bill finalised Depending on timetable of Ministry this may need to

be made a priority. BSC and NEPA involvement Consultations 6 mths Draft law 2 mths Consultations 3 mths Draft law 3 mths Passage 12 mths

MOA & Fisheries

Review Protected Area Regulations

1 mth BSC & NEPA& OPM

DI created for amendments This will need to be completed simultaneously with the Wildlife Bill

Incorporate review of Wildlife and Protected Area Bill

1mth OPM TORs changed and consultants advised of new requirements

Incorporate into the into discussion on new environment and planning framework

Request Attorney General legal opinion

3 mths OPM AG’s opinion obtained Attorney Generals opinion is important for determination of scope of law

Request parliamentary Council to appoint draftsman

3 mths

Dates for all activities dependent on policy framework completion

OPM Draftsman appointed For joint review of relevant Laws

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References

Tomme Rosanne Young “Covering ABS: Addressing the Need for Sectoral, Geographical, Legal and International Integration in the ABS Regime”. Ms. Suneetha & Balakrishna Pisupati “Benefit‐sharing in ABS Options and Elaborations” UNEP, Biodiplomacy Programme, United Nations University Institute of Advanced Studies, and, Division for Environmental Law and Conventions, United Nations Environment Programme. Balancing building blocks of a functional ABS system, UNEP/CBD/WG‐ABS/8/INF/2 2 September 2009 Report of the Ad Hoc Open‐Ended Working Group on Access and Benefit‐Sharing On the Work of Its Sixth Meeting, UNEP/CBD/COP/9/6, 31 January 2008 Access and Benefit‐sharing In Practice; Trends in Partnerships across Sectors UNEP CBD Technical Series No. 38 International Workshop on Negotiating Bioprospecting Agreements 19‐21 June 2001, National Commission on Science and Technology Sponsored By OAS Report of the Workshop on the Implementation of Jamaica’s Obligation under the Convention on Biological Diversity, Kingston, Commonwealth Secretariat, NRCA and Field May 1999 Illustrations Of Legislative Language For The National Implementation Of The SPAW Protocol In The Wider Caribbean region, environmental solutions international, 1995 USA Equitable sharing of benefits from the ICBG project in Jamaica: A trust fund for conservation, education and capacity building for NGOS, NJCA.

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Chapter 3 – Assessment of the Relevant Intellectual Property Policies, Laws, and Procedures

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Assessment of Capacity Building Needs, Preparation of the Third National Report (CBD) and the Clearing House Mechanism (The “Biodiversity Add‐on Project”)

An Assessment of the Relevant Intellectual Property Policies, Laws, and Procedures

Marcus Goffe

2010 May

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Introduction

Jamaica became a party to the Convention on Biological Diversity (CBD) in 1995. The triple objectives of the Convention on Biological Diversity are:

the conservation of biological diversity,

the sustainable use of its components; and

the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Jamaica is exceptionally rich in biodiversity and genetic resources. It is ranked fifth among islands of the world in terms of endemic plants. The country also enjoys a high level of endemism for animal species.27 Jamaica is also rich in biodiversity‐related traditional knowledge. This rich base of genetic resources and traditional knowledge are in need of conservation, sustainability and legal protection. To date, and despite the adoption of a National Biodiversity Strategy and Action Plan, which has been identified as high priority, there has been no holistic or comprehensive approach by the Government of Jamaica to comply with the CBD.28 Although drafting instructions have been prepared for legislation related to access to wildlife genetic resources (not including agricultural species), no policy has been prepared to guide the process. The Government, through the Ministry of Agriculture, has also begun drafting legislation for the International Convention for the Protection of New Plant Varieties (UPOV). However, no legislation has been drafted to address benefit sharing issues. A review of the National Biodiversity Strategy and Action Plan in light of the CBD is timely. This review has been undertaken in several related parts. This Report focuses on one of these – namely policy, legal and regulatory assessments relating to intellectual property, in order to take proper account of Jamaica’s obligations to and compliance with the CBD, in relation to access to and benefit sharing of genetic resources and traditional knowledge in Jamaica. This Report also proposes the optimal approach to the definition of ‘traditional knowledge’. This is an important issue which has gained international prominence due to the increasing recognition over the last 30 years of the value of traditional knowledge, and which remains unsettled. There is no standard definition of what traditional knowledge should include. In carrying out the background work for the report, there has been an examination of other national and international best practice regimes. Based on this the findings set out an outline of alternatives. The Report ends with Recommendations for legal reform to adequately regulate access and benefit sharing in respect of genetic resources and

27 National Environmental and Planning Agency, National Strategy and Action Plan on Biological Diversity in Jamaica, 2003, p. 6

28 Ibid, p. xi and p. 13

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traditional knowledge. This includes an assessment of how best benefit sharing arrangements can be legislated in Jamaica so as to facilitate incorporation of processes which have been successful in other jurisdictions and will likely result in practical implementation which functions ‘on the ground’. An assessment of existing policy, legislative and administrative measures in the area of intellectual property has also been done to determine gaps and how they affect indigenous and local communities in Jamaica.

The recommendations which close this Report have been set out in the following five sections:

1. Environmental and Related Law Reform Recommendations;

2. Intellectual Property and Related Law Reform Recommendations;

3. General Policy and Procedural Recommendations;

4. Community Recommendations; and

5. Jamaica Memory Bank Recommendations. The Report is organised in six Main Parts as follows: Part I – The main definitions which are used and the principles applied Part II – Relevant current Jamaican laws and an assessment of the main gaps and shortcomings. This Part is divided into Environmental and Related Laws and Intellectual Property and Related Laws. An outline of each law is followed by a table highlighting the Inclusions (strengths) as well as Issues/Concerns (weaknesses) of each, in light of the CBD in relation to access and benefit sharing, traditional knowledge and intellectual property. This is followed by the Findings. Part III – A comparative assessment of best practice laws from selected international jurisdictions. The jurisdictions were selected on the basis of recognition of their practical value in applying to the Jamaican context. Part IV – The main challenges and factors for success are outlined, consolidating the work done previously in terms of an assessment of overall opportunities and threats regarding practical access and benefit sharing laws, policies and procedures and their implementation. Part V – The Conclusions which summarise the preceding four Parts; and Part VI – Recommendations. Attachment 1 is a High Level Implementation Plan, which seeks to give a timeline for the recommendations in the Report to be implemented.

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Work Done

The basis for the findings and recommendations in this report include the following: Laws reviewed. This included a detailed examination of relevant environmental and intellectual property related laws of Jamaica for compliance in relation to access and benefit sharing under the CBD. Interviews held. Several interviews were held with relevant stakeholders, both public and private, in the environmental and intellectual property industries in Jamaica. Public consultations. Three main public consultations were held in Kingston, Ocho Rios and Montego Bay with relevant stakeholders, both public and private. These included indigenous and local community representatives. Investigations of international best practice. A survey with comparative analysis was done to glean the several different alternative laws, policies and procedures existing internationally, which have been designed to comply with the CBD. Attendance at conferences and seminars. The research for the Report has been assisted by attendance at several conferences at the World Intellectual Property Organization (WIPO) and seminars presented by the Jamaica Intellectual Property Office (JIPO).

PART I: DEFINITIONS AND PRINCIPLES

This section sets out a description of the main terms, concepts and principles that are relevant to the analysis of the issues in this Report. BIOLOGICAL DIVERSITY ‘Biological diversity’ is defined in the CBD as ‘the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.’ GENETIC RESOURCES The CBD contemplates that rights and obligations exist not only in relation to genetic material, defined as ‘any material of plant, animal, microbial or other origin containing functional units of heredity’, but also to genetic resources, meaning ‘genetic material of actual or potential value.’ Hitherto the CBD, genetic resources were often considered as the ‘common heritage of mankind’. In 1989 the United Nations Food and Agriculture Organization (FAO) established the International Undertaking on Plant Genetic Resources which defined ‘plant genetic

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resources’ as the ‘heritage of mankind which should be available without restriction’.29 However, the CBD explicitly acknowledges as a fundamental principle the sovereign rights of states over the natural resources found in their territories.30 TRADITIONAL KNOWLEDGE There is no universal or internationally accepted definition of ‘Traditional Knowledge’. In its broader sense, ‘Traditional Knowledge’ may include folklore, stories, songs, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices. However, for the purposes of easier analysis and comparison of these cultural forms and knowledge with the intellectual property system, WIPO evolved distinct and narrower conceptual paradigms and working definitions to distinguish between ‘traditional knowledge’ and ‘traditional cultural expressions’ including expressions of folklore.31 The WIPO Working Definition of ‘Traditional Knowledge’ is:

the content or substance of knowledge that is the result of intellectual activity and insight in a traditional context, and includes the know‐how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge that is embodied in the traditional lifestyle of a community or people, or is contained in codified knowledge systems passed between generations. It is not limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.

Although ‘Traditional Knowledge’ is not defined by the CBD, Article 8(j) does define the context in which such knowledge is relevant to the CBD and therefore does provide some definition to the term. Article 8(j) of the CBD states:

subject to their national legislation Contracting Parties shall respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilization of such knowledge, innovation and practices.

29 Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property, Cambridge University Press, UK, 2010, p. 9. However, following the CBD, the FAO in 2001 implicitly recognised state sovereignty over plant genetic resources in its International Treaty on Plant Genetic Resources for Food and Agriculture (p. 11).

30 CBD, Article 3 and Article 15

31 In WIPO, traditional knowledge is compared and contrasted with the patent system, and traditional cultural expressions are compared and contrasted with the copyright and trademark system.

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Under Article 8(j), Contracting Parties are therefore required to respect, maintain and promote biodiversity‐related traditional knowledge. This is to be done with the ‘involvement’ (effective participation) and ‘approval’ (prior informed consent) of the holders of such knowledge. Article 8(j) also establishes the duty to ‘‘encourage’ (ensure) the equitable sharing of the benefits gained from the use of such knowledge.

From Article 8(j) therefore, a narrow definition of ‘Traditional Knowledge’ can be gleaned – knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. This definition is similar to the working definition developed at WIPO. This includes knowledge of biodiversity as well as know‐how in relation to traditional environmental methods and practices and the development of plant species and animal breeds. Traditional knowledge in this sense is therefore applicable to agriculture, fisheries, health, horticulture, forestry and environmental management in general. This Report therefore uses the term ‘traditional knowledge’ in the narrower context as how it is used in Article 8(j) of the CBD, and particularly how it is used in WIPO, to mean ‘knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’. In short therefore this Report is limited to the narrower definition of ‘traditional knowledge’ ‐ biodiversity‐related traditional knowledge. COMPLYING WITH THE THIRD OBJECTIVE OF THE CBD ‐ (the fair and equitable sharing of the benefits arising out of the utilization of genetic resources) As the UNDP Project Document for this current Project, titled UNDP‐GEF Enabling Activities Project between the Government of Jamaica and the United Nations Development Programme, notes:

Bio‐prospecting and the utilization of genetic resources in biotechnology have economic potential for the pharmaceutical, agricultural and cosmetic industries. Recognition of the economic potential of the country’s genetic resources could result in increased conservation and sustainable use of this resource. At present, the majority of research on Jamaica’s genetic resources is undertaken by international bio‐prospectors seeking ‘new’ economically favourable resources. No provision however exists to ensure Jamaicans benefit from the research or are privy to its results. There is therefore an urgent need for the development of policy, legislation and increased institutional capacity for Jamaica to take full advantage of the benefits arising from this resource.32

Two commonly used meanings for ‘equitable sharing of benefits’ internationally are (1) equitable sharing among countries regarding the use of natural resources; and (2) a fair economic and/or non‐economic return to all State and Non‐State actors from which

32 UNDP-GEF Enabling Activities Project: Assessment of Capacity Building Needs, Preparation of the Third National Report (CBD) and the Clearing House Mechanism, p. 15

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resources are obtained.33 ‘Non‐State actors’ include (1) private individuals and legal entities in or on whose private property resources are obtained; and (2) indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity (Article 8(j) CBD). The third objective of the CBD therefore represents a fundamental change internationally regarding the required regulatory regime for natural resources and the environment and access to genetic resources, because prior to the CBD, there was no such objective and requirement regarding benefit sharing. The new requirement means a new (or amended) policy, laws and procedures regarding access to genetic resources and traditional knowledge that aims to ensure that fair and equitable sharing of benefits arising out of the utilization of genetic resources therefore is on two levels:

1. ensuring that Jamaica benefits from utilization of its biodiversity, genetic resources and traditional knowledge; and

2. ensuring that indigenous and local communities benefit from utilization of their biodiversity, genetic resources and traditional knowledge.

PROTECTING TRADITIONAL KNOWLEDGE It is widely appreciated that traditional knowledge can make a significant contribution to sustainable development. The CBD is premised on the fact that indigenous and local communities, as on‐site communities with extensive knowledge of local environments, are most directly involved with conservation and sustainable use. They must therefore be integrally involved in the implementation of the CBD. As the CBD Conference of the Parties (COP) stated,

‘The fundamental requirement for the conservation of biological diversity is the in‐situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.’

Ensuring the fair and equitable sharing of benefits from use of genetic resources therefore means also recognising ‘the importance for biological diversity of indigenous and local communities embodying traditional life styles relevant for the conservation and sustainable use of biological diversity’ and the rights of many indigenous and local communities in those resources found in their communities, which includes biodiversity, genetic resources and associated traditional knowledge. In addition to the obligation to conserve traditional knowledge under Article 8(j), is the obligation to ensure the fair and equitable sharing of the benefits arising out of the utilization of traditional knowledge. Many widely used commercial products, such as plant‐based medicines, health products and cosmetics, are derived from traditional knowledge, as well as other products made from or incorporating genetic material, such as handicraft and clothes. Traditional knowledge has increasingly been used to develop new products and 33 David Greer and Brian Harvey, Blue Genes: Sharing and Conserving the World’s Aquatic Biodiversity, Earthscan/IDRC, 2004, http://www.idrc.ca/en/ev-64749-201-1-DO_TOPIC.html

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techniques without the involvement and consent of the holders of such knowledge, who have also received none of the resulting benefits. While recognising that traditional knowledge is often identitified or associated with indigenous and local communities, there are many countries internationally where some or all of the traditional knowledge is not attributable to one or other community, but to the nation state as a whole. This is of relevance not so much to how that knowledge is preserved or maintained, which very often will nevertheless depend on in situ indigenous and local communities, but to the recognition and administration of rights in respect of that traditional knowledge, that is, whether and to what extent rights in traditional knowledge ought to be recognised and managed by indigenous and local communities, and/or the state. International jurisprudence establishes that in order for the sharing of benefits to be fair, it must involve the free, prior informed consent of the parties, which includes full disclosure and effective consultation and participation in the benefit‐sharing agreements. This applies whether the parties be countries (Contracting Parties under the CBD) or indigenous and local communities. Objectives:

1. Respect, protect, preserve and maintain traditional knowledge

2. Promote the wider use of traditional knowledge:

a. with the free, prior informed consent of the traditional knowledge rights holders, be they states or indigenous and local communities;

b. ensuring the equitable sharing of benefits among traditional knowledge users and rights holders; and

c. respecting the decision making processes of traditional knowledge rights holders.

Legislating and implementing a comprehensive process for ensuring survival of indigenous and local communities and providing them with tools and instruments through which they can decide on critical issues such as bioprospecting, may not be achieved through a single, special regulation but through a series of administrative, policy and legal measures including addressing indigenous land claims, utilizing contractual provisions on access to genetic resources, utilizing IPR provisions, and implementing ‘disclosure of origin’ provisions. Principles:

1) Any commercial, scientific or industrial use of indigenous and traditional knowledge should be subject to the free prior informed consent (FPIC) of traditional knowledge rights holders, including the state and indigenous and local communities.

2) No customary practices should be affected.

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The Bonn Guidelines outline several measures that countries can adopt to encourage compliance with the CBD objectives and principles in relation to access and benefit sharing. These include:

1) Informing potential users about their obligations regarding access.

2) Encouraging the disclosure of the country of origin of genetic resources and the origin of traditional knowledge.

3) Preventing the use of genetic resources obtained without free prior informed consent.

In relation to the Government of Jamaica, this means to develop scientific, technical and institutional capacities, and implement appropriate laws, procedures and administrative measures to ensure that:

1) access to Jamaica’s biodiversity, genetic resources and traditional knowledge is monitored, regulated and enforced; and

2) any benefits that accrue from utilization of same are fairly and equitably shared with the Government of Jamaica.

In relation to indigenous and local communities, this means to: 1) respect, and empower the communities to preserve and maintain traditional

knowledge relevant to the conservation and sustainable use of biological diversity;

2) establish mechanisms to ensure the effective participation of indigenous and local communities in decision‐making and policy planning; and

3) encourage the equitable sharing of the benefits arising from the utilization of the biodiversity, genetic resources and traditional knowledge of indigenous and local communities.

In order to balance the traditional knowledge rights between the state of Jamaica and indigenous and local communities in Jamaica, it will be necessary to devise a mechanism to differentiate between (1) traditional knowledge which is identifiable or associated with a particular indigenous or local community or communities, in respect of which the indigenous or local community has the right and obligation to manage and benefit from; and (2) traditional knowledge which is not identifiable or associated with any particular indigenous or local community or communities but which is identitifed or associated with Jamaica and Jamaicans in general, in respect of which the Government of Jamaica on behalf of all Jamaicans has the right and obligation to manage and benefit from. IDENTIFYING INDIGENOUS AND LOCAL COMMUNITIES IN JAMAICA ‘Indigenous peoples’ has most often been used to refer to the original people on the land before European colonization. There is however no universally accepted definition. For that reason, the test of ‘indigenousness’ has been said to be a subjective as well as an objective one. The objective indices to be satisfied include some, but not necessarily all, of the following: occupation of ancestral lands since pre‐invasion of colonial societies; common ancestry with original occupants of lands; historical continuity in land occupation; preservation of a peculiar culture, religion and/or language; preservation of a distinctive system of government and social institutions based on customary law; and the intent to

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develop and transmit ancestral lands and cultural identity as distinctive peoples, to future generations.34 However, because of differing circumstances in different jurisdictions, the designation is applied on a case by case basis. The question has often been asked, ‘who are the indigenous peoples of Jamaica?’ As history tells us, the Tainos were the original inhabitants of Jamaica, based on Christopher Columbus seeing only Tainos when he arrived in Jamaica. It has been said that by 1655, when the British ‘invaded’ and claimed Jamaica, the Tainos had been decimated.35 Thereafter, the British imported Africans as slaves to work the plantations in Jamaica. Written history also tells us that the first Maroons were runaway slaves from the British plantations. However, Maroon oral history says that the first Maroons came over to Jamaica as free Africans.36 It is also reported that some Africans came over to Jamaica with Columbus.37 What is now clear is that the Maroons interacted with the Tainos in the fields and in the enclaves in the hilly interior, eventually inter‐marrying.38 In relation to the veracity of Maroon oral history, Anthropologist Kenneth Bilby poignantly explains that “[r]egardless of how faithfully Maroon oral narratives might recount ‘what really happened’... it is clear that the Maroon oral culture... is both culturally distinctive and historically deep. As the ideational reflection and medium of a genuinely distinct, historically continuous ethnic identity, this is enough.”39 This aspect of Maroon oral history is supported by recent archaeological evidence which suggests that the Tainos were never completely exterminated.40 Some Tainos were likely never captured by the Spanish and in any event, some did escape to form their own communities in the interior. Thus it has been said that “[t]he earliest Maroons consisted of indigenous people who may have been enslaved by the Spaniards and possibly people of African descent who may have come with the Spaniards.”41 On that account, even using the restrictive definition of ‘indigenous’, the Maroons would qualify as indigenous by virtue of being descendant from indigenous Taino‐Maroon communities. 34 F. Lenzerini, The Status of Indigenous Peoples in International Law, in F. Lenzerini (Ed.), Reparations for Indigenous Peoples, Oxford University Press, UK, 2008, p. 76

35 Mavis Campbell, The Maroons of Jamaica: 1655-1796, Africa World Press, New Jersey, 1990, p. 9

36 Werner Zips, Laws in Competition: Traditional Maroon Authorities within Legal Pluralism in Jamaica, 37&38 Journal of Legal Pluralism and Unofficial Law, 1996, p. 279-305, at 280

37 Beverly Carey, The Maroon Story, Agouti Press, Jamaica, 1997, p. 38

38 Ibid, p. 58, 61-62

39 Kenneth Bilby, True-Born Maroons, Ian Randle Publishers, Jamaica, p 64

40 E. Kofi Agorsah, Archaeology of Maroon Settlements in Jamaica, in E. Kofi Agorsah (Ed.), Maroon Heritage: Archaeological, Ethnographic and Historical Perspectives, Canoe Press, University of the West Indies, Jamaica, 1994, p. 163

41 Ibid, p. 168

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The International Labour Organization (ILO) Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, which was adopted on 27 June 1989 and entered into force on 5 September 1991, applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and

(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Since that Convention, the terms ‘indigenous peoples’ and ‘tribal peoples’ have been treated as synonymous. Based on the language used in the ILO Convention, even if the Maroons are not considered as ‘indigenous’, they could be considered as tribal people under the Convention. In any event, the Maroon communities would qualify for the rights of indigenous peoples based on recent jurisprudence from the Inter‐American Court of Human Rights (IACHR). In two judgments involving two Maroon communities in Suriname, the IACHR unanimously concluded that the Maroons make up “a tribal community whose social, cultural and economic characteristics are different from other sections of the national community, particularly because of their special relationship with their ancestral territories, and because they regulate themselves, at least partially, by their own norms, customs, and/or traditions.”42 The judgment explained that “the Court’s jurisprudence regarding indigenous peoples’ right to property is also applicable to tribal peoples because both share distinct social, cultural, and economic characteristics, including a special relationship with their ancestral territories, which require special measures under international human rights law in order to guarantee their physical and cultural survival.”43 Like the term ‘indigenous peoples’, there is no universal definition of a ‘minority’ community. In international law, the Permanent Court of Justice in the Greco‐Bulgarian Communities case,44 defined a ‘community’ as a minority group “having a race, religion, language and traditions in a sentiment of solidarity, with a view to preserving the traditions” of the group.45 The Sub‐Commission on the Prevention of Discrimination and protection of Minorities defined ‘minorities’ as “non‐dominant groups in the population which possess

42 Case of the Saramaka People v. Suriname, Inter-American Court of Human Rights, Judgment of November 28, 2007, http://www.corteidh.or.cr/casos.cfm, para. 84

43 Ibid, para. 86

44 (1930) PCIJ Reports, Series B, No. 17, p. 4.

45T. Musgrave, Self Determination and National Minorities, Oxford University Press, Oxford, 2002, p. 52

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and wish to preserve ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.”46 The term has come to not necessarily be based on race, but on ‘ethnic, religious or linguistic traditions.’ In fact, some countries, like China and many in Africa, do not officially recognise any one community or people as indigenous, but apply some rights of indigenous peoples to their minority communities. Therefore, it can also be said that Jamaica has ethnic, religious and linguistic minority communities which, in the context outlined by the IACHR, may be entitled to the rights of indigenous peoples. The four most significant and culturally distinct indigenous/minority communities in Jamaica today are the Maroons, Kumina, Revival, and Rastafari. The Maroons of Moore Town, Jamaica, were recognised by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2003 as one of the Masterpieces of the Oral and Intangible Heritage of Humanity.47 In 2006, the Blue and John Crow Mountains National Park (BJCMNP) was listed by UNESCO on the tentative list for World Heritage Site status.48 One of the bases for the stated significance of the BJCMNP, in addition to its wealth of biodiversity, is its “association between the events and living traditions of an indigenous people, and natural heritage”.49 On May 28, 2009, the Maroons, Kumina, Revival and Rastafari communities were all recognised and honoured for their contribution to the social, historical and cultural value of Jamaica. The four communities were each awarded with Special Musgrave Medals by the Institute of Jamaica.50 In addition to these indigenous, minority communities, there are numerous farming and fishing communities in Jamaica which are involved daily with genetic resources and traditional knowledge. That is what is meant by local communities in the context of the CBD, that is, communities which embody “traditional lifestyles relevant for the conservation and sustainable use of biological diversity.” Whether one agrees with the nomenclature of ‘indigenous’, ‘traditional’, ‘minority’, or, as the CBD uses, ‘local’ community, the intent and ambit of the CBD is clear. It is intended to foster greater recognition and empowerment of all communities involved with genetic resources and biodiversity‐related traditional knowledge, so as to meet the objectives of the CBD.

46 Ibid, p. 169

47 www.unesco.org/culture/heritage/intangible/masterpieces/list2003

48 This is a tentative listing by Jamaica, on application by the Jamaica Conservation Development Trust, signalling the Government’s intention to nominate BJCMNP to UNESCO for the BJCMNP to be considered for World Heritage Site status.

49 http://whc.unesco.org/en/tentativelists/5079/

50 http://www.instituteofjamaica.org.jm/PR/special_musgrave09.asp. See also Jamaica Observer, “Four indigenous movements awarded Musgrave Medals”, May 30, 2009.

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PART II: CURRENT LAWS, MAIN GAPS AND SHORTCOMINGS

This Part is divided into:

1. environmental and related laws; and

2. intellectual property and related laws.

In both areas, there are substantial gaps and shortcomings, which are in need of reform in order to adequately regulate access and benefit sharing in respect of genetic resources and biodiversity‐related traditional knowledge. ENVIRONMENTAL AND RELATED LAWS Jamaica’s current environmental legislation provides a basic framework for the conservation and sustainable use of biodiversity. There are at least 52 pieces of legislation which have aspects that directly relate to the management of the environment. However, very few of these statutes deal comprehensively with the protection, conservation and sustainable use of biodiversity, as they are primarily sectoral in nature.51 Much traditional knowledge exists in Jamaica for the different uses and properties of local genetic resources. If this knowledge is not preserved and access regulated it might be lost or be entered into the public domain, which could diminish its value. However, the obligation to protect and preserve this traditional knowledge has not been addressed in any systematic manner and there is no standard definition of what traditional knowledge should include. There is a need for the protection of traditional knowledge through national policy and legislation to ensure equitable access and benefit sharing.52 The Government of Jamaica has said it intends to fully implement the provisions of this Convention by carrying out the necessary legislative changes required to fulfil our obligations.53 Implementation of the provisions of the Convention at a national level requires private individuals, universities and other institutions to have their rights and responsibilities clarified under national law or policy.54 There are currently no legislative or policy measures on benefit sharing of genetic resources in Jamaica.55 What follows therefore is a summary of the main laws including regulations that exist in Jamaica relative to access to biodiversity and genetic resources in Jamaica. These laws were enacted for the most part prior to the CBD and so, while they may regulate access to biodiversity in Jamaica to protect and conserve the environment, they generally are insufficient to comply with the third objective of the CBD ‐ the fair and equitable sharing

51 National Environmental and Planning Agency, National Strategy and Action Plan on Biological Diversity in Jamaica, 2003, p. 14

52 Ibid, p. 23

53 Ibid, p. 20

54 Ibid, p. 14

55 Ibid, p. 23

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of the benefits arising out of the utilization of genetic resources. The deficiencies are noted under the Issues/Concerns section of the tables after each law. THE NATURAL RESOURCES CONSERVATION AUTHORITY ACT 1991 The NRCA is the statutory authority created by the NRCA Act to:

a. effectively manage the physical and natural resources of Jamaica so as to ensure their conservation, protection and proper use;

b. manage such national parks, marine parks, protected areas and public recreational facilities as may be prescribed;

c. develop, implement and monitor plans and programmes relating to the management of the environment, conservation and protection of natural resources;

d. formulate standards and codes of practice to be observed for the improvement and maintenance of the quality of the environment generally;

e. investigate the effect on the environment of any activity that causes or might cause pollution or that involves or might involve waste management or disposal, and take such action as it thinks appropriate; an d

f. undertake studies in relation to the environment and encourage and promote research into the use of techniques for the management of pollution and the conservation of natural resources;

The Minister (responsible for the Environment) may, on the recommendation of the NRCA and after consultation with the Jamaica National Heritage Trust, designate:

a. any area of land as a national park to be maintained for the benefit of the public;

b. any area of land or water as a protected area in which may be preserved;

c. any object (whether animate or inanimate) or unusual combination of elements of the natural environment that is of aesthetic, educational, historical or scientific interest; or

d. any area of Iand lying under tidal water and adjacent to such land or any area of water as a marine park.

Additionally, under section 32, the Minister may declare any area to be an environmental protection area and direct the NRCA to prepare and to submit to him for approval an environmental protection plan for that area. The Act prescribes that no person shall undertake in a prescribed area any enterprise, construction or development except in accordance with a permit issued by the NRCA. In considering an application for a permit, the NRCA:

a. shall consult with any agency or department of Government exercising functions in connection with the environment; and

b. shall have regard to all material considerations including the nature of the enterprise, construction or development and the effect which it will or is likely

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to have on the environment generally, and in particular on any natural resources in the area concerned.

The NRCA may either grant a permit subject to such terms and conditions as it thinks fit, or refuse to grant a permit. The Act stipulates that the NRCA shall not grant a permit if it is satisfied that any activity connected with the enterprise, construction or development to which the application relates is or is likely to be injurious to public health or to any natural resources. The NRCA may also revoke or suspend a permit if any term or condition therein is breached, as well as issue Cessation Orders where any regulated activity is carried on without a permit or in breach of the permit granted. Where it appears to the NRCA that activities pose a serious threat to the natural resources or to public health, the NRCA may also serve on the person who appears to have carried out or to be carrying out the activity, an Enforcement Notice specifying the offending activity and requiring steps to be taken within a specified period to ameliorate the effect of the activity and to restore the natural resources to their condition before the activity took place. The Act creates criminal offences for contravention of the above, punishable by a fine not exceeding fifty thousand dollars ($50,000) or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. Where a person defaults in the payment of the fine, he is liable to imprisonment for a term not exceeding one year and where the offence is a continuing offence, to a further fine not exceeding three thousand dollars ($3,000) for each day on which the offence continues after conviction. Enforcement of the Act is aided by members of the Jamaica Constabulary Force who may use such force as may be necessary for the purpose of ensuring compliance with any notice issued by the NRCA under the Act. Any person who hinders or obstructs the police shall be guilty of an offence and shall be liable to a fine not exceeding ten thousand dollars ($10,000) or to imprisonment for a term not exceeding one year. The NRCA is empowered under the Act to require an applicant for a permit to furnish the NRCA with such documents and information as the NRCA thinks fit, as well as an environmental impact assessment where the NRCA is of the opinion that the construction or development is likely to have an adverse effect on the environment. Failure to submit an environmental impact assessment as required by the NRCA is also a criminal offence, punishable by a fine not exceeding thirty thousand dollars. All criminal prosecutions under the Act have to be commenced within twelve calendar months of the alleged commission of the offence, unless the Court is satisfied that the NRCA with due diligence could not have been aware within that period that the offence had been committed, in which case the Court can extend the time to prosecute as the Court deems fit. Further, section 8 of the Act provides that any person, body or agency having authority over any matter in respect of which the NRCA has functions to perform pursuant to the Act, shall not approve or determine such matter until the NRCA has been consulted thereon. The Act empowers the Minister responsible for the Environment to make Regulations to halt any action which may bring about the extinction of or major adverse effects on,

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prescribed fauna or flora species; protect particular species of prescribed fauna and flora; prescribe the form and manner of, and the fees payable in connection with, an application for any licence or permit that may be granted by the NRCA; and to regulate the grant, refusal, revocation or suspension of any licence or permit and the terms, conditions or restrictions subject to which such licence or permit may be granted.

INCLUSIONS ISSUES/CONCERNS

(1) already‐established national regulatory authority for the environment

(1) does not specifically include objective of national authority to ensure the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, and therefore does not impose the duty on and give the power to the national authority to regulate and enforce access to genetic resources on that basis (2) does not require any consultation with indigenous and local communities in the area prior to declaring an area to be a national park, protected area, or marine park

The Natural Resources (National Parks) Regulations 1993 According to Regulation 13(1), any person who takes or destroys or wilfully injures or in any manner disturbs or interferes with any protected animal or who wilfully cuts or destroys any plant in a national park, commits an offence. The Act prescribes that a person shall not use, receive, sell, or otherwise dispose of any property knowing it to have been unlawfully removed from any national park. The penalty for such offences is a fine not exceeding twenty thousand dollars ($20,000) or imprisonment with or without hard labour for a term not exceeding one year or to both such fine and imprisonment. Regulation 15(1) provides that a person who carries out any operation for the extraction or mining of minerals in a national park without the written permission of the NRCA or in accordance with the provisions of a licence, is liable on summary conviction to a fine not exceeding ten thousand dollars ($10,000) or to imprisonment with or without hard labour for a term not exceeding two years. Regulation 16 empowers the NRCA to grant permits for the carrying out of research, or the collection of natural objects or specimens, animal or plant life in a national park for educational, commercial, scientific or environmental purposes, unless the carrying out of any research or collection is likely to damage the national park or interfere unduly with the management of the flora or fauna. The Regulation also sets the fees payable for the application as well as for the grant of a permit to conduct research or collect specimens:

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(a) for purposes other than commercial ‐ one thousand dollars ($1,000) for the application; three thousand dollars ($3,000.00) for the permit; and

(b) for commercial purposes ‐ two thousand dollars ($2,000) for the application; six thousand dollars ($6,000) for the permit.

The Regulation prescribes the form that is to be used for the application for and the grant of a permit. The Regulation specifies that an application and a permit (if granted) shall be made in respect of each natural object or specie of plant or animal. It provides a right of appeal to persons who are refused a permit. Any person who carries out any form of research or collects any object, specimen, animal or plant life in a national park without a permit, commits an offence and is liable on summary conviction before a Resident Magistrate to a fine not exceeding ten thousand dollars ($10,000) or to imprisonment with or without hard labour for a term not exceeding two years or to both such fine and imprisonment, as well as to pay to the Government of Jamaica the full market value or the cost of rehabilitation (whichever is the greater) as assessed by the Court, of the property removed or of the damage done to the national park or any plant or animal therein. Regulation 23 creates a legal presumption that ‘if, in the vicinity of a national park, any person is found in possession of any plant, stone, mineral, nest, animal, artefact, or relic, or any part thereof which belongs in that national park and upon being required by a national park ranger that person fails or refuses to give a satisfactory account of the manner in which he came into possession of such plant, stone, mineral, nest, animal, artefact or relic or part thereof, it shall be presumed that he has removed it from such national park.’ Regulation 24 provides that a person who commits an offence against these Regulations for which no penalty is provided, is liable on summary conviction before a Resident Magistrate:

a. where the offence is committed by an individual, to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand dollars ($20,000) and where the offence is a continuing one to a fine not exceeding five hundred dollars ($500) per day for each day on which the offence continues after conviction;

b. where the offence is committed by a corporate entity, to a fine not exceeding twenty thousand dollars ($20,000) and where the offence is a continuing one to a further fine not exceeding five hundred dollars ($500) per day for each day on which the offence continues after conviction.

The Regulation provides for enforcement by National Park Rangers (which includes any member or officer of the Jamaica Constabulary Force, the Jamaica Defence Force and the Island Special Constabulary Force) who are authorised to:

a. require any person to refrain from any unlawful act or any act which in their opinion appears likely to result in the damage or destruction of any property, real or personal, which is owned by, in the possession of, or under the management of the national park or any user of the national park;

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b. require any person whom they find committing or whom they reasonably suspect of having committed any such act to state his full name and true place of residence or leave the national park immediately;

c. require the holder of a permit or licence to produce his permit or licence, as the case may be, for inspection;

d. seize any weapon, trap or device of any kind with which an offence appears to have been committed;

e. search any person whom they may reasonably have cause to suspect of contravening any provision of the Regulations.


(1) regulates access to protected animals and plants in national parks by establishing criminal offences for unauthorised access (2) regulates the carrying out of operations for the extraction or mining of minerals in national parks (3) regulates, by the issuing of permits, the carrying out of research and the collection of natural objects or specimens, animal or plant life, in national parks, for commercial and non‐commercial purposes (4) in considering whether to grant a permit for research or collection, the NRCA is required to consider whether the research or collection is likely to damage the national park or interfere unduly with the management of the flora or fauna (5) provides for enforcement by national park rangers, in addition to the police

(1) only regulates access in national parks (2) does not regulate access to ensure the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (3) in considering whether to grant a permit for research or collection, the NRCA is not required: (a) to ensure the prior informed consent of indigenous and local communities that may operate within the national park; (b) to take steps to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

THE WILD LIFE PROTECTION ACT 1945 The Wild Life Protection Act protects designated species of animals and regulates hunting in Jamaica. Hunting of any protected animal or bird is prohibited, as is taking turtle eggs and having in one’s possession any protected animal or bird, or the nest or egg of any protected animal or bird. The Act makes all of the above criminal offences. The Act also makes it a criminal offence to take, kill, possess, buy or sell any immature fish, as well as regulates the method by which fish may be killed. The Act regulates the shooting of game bird by declaring the seasons when such game bird may be shot. The Act provides for the declaration of game sanctuaries and games reserves in which no hunting is allowed. The hunting of any animal or bird in Jamaica’s exclusive economic zone requires a licence.

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Fourteen animals are designated as protected in the Third Schedule of the Act. All birds in Jamaica except those in the second part of the Second Schedule of the Act are protected. The Act empowers the Governor‐General to appoint Game Wardens, Fishery Inspectors and such other officers as necessary or expedient to enforce the provisions of the Act. It empowers Game Wardens, Fishery Inspectors and Constables to enter, remain upon and traverse any lands at any time of the day or night, where there is reason to suspect that any offence against the Act or any Regulations is being committed or is about to be committed. Game Wardens, Fishery Inspectors and Constables are authorised under the Act, in any public place or on any Crown lands or in any Game Sanctuary or Fish Sanctuary, to search any person who is reasonably suspected of having contravened any of the provisions of the Act or Regulations, as well as to stop and search any vehicle, boat or other thing in or upon which it is suspected that any animal, bird, fish, or the nest or egg of any bird is, being held illegally. Where any person is found committing, or is reasonably suspected of being engaged in committing an offence under the Act or any Regulations, any Game Warden, Fishery Inspector or Constable may without warrant stop and detain him, and if his name and address are not known and he fails to give them to the satisfaction of the Game Warden, Fishery Inspector or Constable, they may without warrant apprehend him and take him into custody at the nearest police station. The Act also makes it an offence to assault, obstruct, hinder, resist, or to aid, abet or incite any other person to assault, obstruct, hinder or resist any Game Warden, Fishery Inspector or Constable, in the execution of his duties under the Act. Offences under the Act attract a fine of up to one hundred thousand dollars ($100,000) or imprisonment for a term not exceeding twelve months. The Act empowers the responsible Minister to make Regulations to control the seasons during which fish may be taken; to control fish sanctuaries and hatcheries; to limit the number of game birds or fish which may be hunted or taken by any one person in any one day; to require persons to render returns containing such information as may be specified; and to make provision for the issue of licences and fees.

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The Minister can also grant exemptions to anyone to possess a protected animal.


(1) regulates access to protected animals by establishing criminal offences for unauthorised access (2) hunting protected animals and birds is prohibited

(1) only regulates access to specified species of animals and birds designated as ‘protected’ and therefore does not regulate access to the other species which are not designated as ‘protected’ (2) does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted (3) does not require any consultation with indigenous and local communities prior to designating species of animal life as ‘protected’ and prior to declaring areas as game sanctuaries and game reserves.

THE BEACH CONTROL ACT 1956 Under the Beach Control Act, all rights in and over the foreshore of Jamaica and the floor of the sea are expressly vested in the Crown.56 Nevertheless, any person who is the owner or occupier of any land adjoining any part of the foreshore and any member of his family and any private guest of his, shall be entitled to use that part of the foreshore adjoining his land for private domestic purposes, including bathing, fishing, and other like forms of recreation and as a means of access to the sea for such purposes.57 Upon the recommendation of the NRCA, the Minister is empowered to declare any part of the foreshore and the floor of the sea together with the water lying on such part of the floor of the sea, to be a protected area. He may also specify which activities are prohibited therein, including fishing; the use of vessels; the disposal of rubbish or any other waste matter; water‐skiing; dredging or disturbance in any way of the floor of the sea; the destruction or removal of coral, sea fans and sedentary marine animals; and the searching for or removal of any treasure or artefact from the floor of the sea. The penalty for breach is a fine of up to five hundred thousand dollars ($500,000). However the Minister is also authorised to grant licences to persons to carry on any prohibited activity. After the 1st June, 1956, no person shall encroach on or use, or permit any encroachment on or use of, the foreshore or the floor of the sea for any public purpose or for or in connection with any trade or business, or commercial enterprise, or in any other manner, without a licence.58 Licences are to be granted or refused by the NRCA, which is required to consider: 56 Beach Control Act, s. 3

57 Ibid, s. 4

58 Ibid, s. 5

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a. the public interest in regard to fishing, bathing or recreation;

b. the protection of the environment;

c. any future development of the land adjoining that part of the foreshore in respect of which the application is made.59

The NRCA may provide for the protection of such interests by and in the terms of the licence. The licence system is enforced by criminal sanction whereby any person who should and does not have a licence, shall be liable on summary conviction before a Resident Magistrate to imprisonment with or without hard labour for a term not exceeding twelve months, or to a fine not exceeding five hundred thousand dollars ($500,000) and in default of payment of any such fine, to imprisonment with or without hard labour for a term not exceeding twelve months, or to both such imprisonment and fine. Interestingly, the Act specifically provides that where a company is guilty, every director, manager, agent and officer of the company who is knowingly a party to the breach shall be liable to the penalty prescribed.60 The NRCA may require applicants for a licence to furnish additional documentation or information to assist the NRCA in making a decision whether or not to grant the licence. The NRCA may also require an environmental impact assessment where it is of the opinion that the use in relation to which the licence is sought, is having, or is likely to have, an adverse effect on the environment.61 The NRCA is empowered under the Act to make Regulations, with the approval of the Minister, inter alia:

a. with respect to the form and manner of application and fees for licences;

b. providing for the registration of all licensed persons;

c. for the protection of the environment; and

d. for the preservation of order and good conduct among members of the public using the foreshore or adjoining land.

The NRCA may also apply to the Supreme Court for Orders, inter alia:

a. prohibiting anyone from using the foreshore or floor of the sea without, or in contravention of, a licence;

b. requiring anyone to remove, within a specified period any encroachment erected or permitted to be erected by that person without, or in contravention of, a licence;

59 Ibid, s. 11

60 Ibid, s. 5(3)

61 Ibid, s. 11(5)

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c. requiring anyone to carry out, within a specified period, a rehabilitation of the foreshore or floor of the sea, so as to remedy any damage caused by such person; and

d. requiring anyone to pay to the NRCA such sum as the Court may award as compensation for damage to any natural resource, accounting for any reasonably foreseeable loss in the economic value of the natural resource to the public.62

All sums received by the NRCA through the Courts in relation to the above, are to be paid into a fund to be constituted and administered by the NRCA for purposes related to the rehabilitation, protection or enhancement of beaches or marine life.63


regulates access to sea fans and sedentary marine animals regulates commercial activities on the foreshore and sea floor e.g. dredging

(1) does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

THE FOREST ACT 1996 The Forest Act established the Forestry Department. Under the Act the Governor General may appoint a Conservator of Forests, who may in turn appoint Forest Officers and Special Forest Officers to regulate access to and use of forest produce and forest resources, as well as to carry out the other functions of the Forestry Department under the Act. The functions of the Forestry Department under the Act which are relevant to the CBD and in particular access to genetic resources include:

a. sustainable management of forests in Crown lands or in forest reserves and the effective conservation of those forests;

b. directing and controlling the exploitation, in a rational manner, of forest resources by the introduction of adequate systems for renewal of those resources;

c. preparing and implementing a national forest management and conservation plan;

d. promoting, establishing and maintaining a forest research programme with a view to ‘identifying and obtaining silvicultural data to be used in improving financial yields of species important to the national economy’ (‘silvicultural’ means of the study, cultivation and management of forest trees);

e. control and supervision of the cutting, harvesting, milling and sale of timber and other forest produce;

62 Ibid, s. 19(2)

63 Ibid, s. 19(10)

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f. granting of licences and permits under this Act; and

g. compiling information and statistics concerning the use of timber and other forest produce.

The Forestry Department is also responsible for the protection and preservation of watersheds in forest reserves, protected areas and forest management areas. The responsible Minister may declare any Crown lands or any private land if the owner applies in writing for such a declaration, to be forest reserves. Only Crown lands not in a forest reserve and private lands which the Minister is ‘satisfied should be controlled for the protection of the national interest’, may be declared to be forest management areas. Under the Act the purpose of forest reserves and forest management areas are to conserve forests, conserve soil and water resources, protect and conserve endemic flora and fauna, as well as to generate forest products. Every five years, the Conservator is required to submit to the Minister a forest management plan for each forest reserve and each forest management area. The purpose of forest management plans is to ensure the protection and conservation of forests, soil, water, wildlife, and forest products. The Act also provides for the establishment of local forest management committees (LFMCs) to manage the whole or any part of a forest reserve, forest management area or protected area. This includes monitoring the condition of natural resources in the relevant reserve or area; advising the Conservator on matters relating to the development of the forest management plan and the making of regulations; and assisting in the design and execution of conservation projects in the relevant reserve or area. Each LFMC must include at least two members who have local knowledge of the area. Several LFMCs have been established. There are three for Cockpit Country which includes some Maroon communities. The Conservator is required to prepare an inventory of lands suitable for forestry and for ‘maintaining and enhancing the biodiversity of Jamaica’s flora and fauna’. He is also required to develop and implement programmes for the establishment of nurseries, as well as the provision of seedlings and other planting material. Importantly, under section 22 the Conservator may designate areas of land in a forest reserve for the purpose of research with a view to improving knowledge of Jamaica’s forests and trees. Under the Act, the Conservator may grant licences and permits for the removal or sale of dead or damaged timber or other forest products, as well as for research activities (see the Forest Regulations 2001 below). ‘Forest produce’ is defined as including:

a. trees, plants. fauna, stones, sand and soil existing in or taken from a forest reserve, Crown land or forest management area; or

b. all parts and produce of such trees and plants.

It is an offence under the Act to cut a tree in a forest reserve on Crown lands without a licence issued by the Conservator, punishable by a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years or to both such fine

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and imprisonment. It is also an offence to cut, uproot, or strip the bark or leaves from any tree; or to remove soil, sand or gravel; or to kill, wound or capture any wild birds or animals, in any forest reserve, protected area or forest management area. For such offences the punishment is lesser ‐ a maximum fine of two hundred thousand dollars ($500,000) and in default of payment, imprisonment for up to two years. Under the Act the Conservator and other forest officers have the powers of constables under the Constabulary Force Act, which include powers to stop, search and arrest and/or seize any person, place, or thing upon, reasonable cause to suspect that an offence under the Act has been or is likely to be committed. In addition, persons authorised by the Minister under the Act may enter any premises within a forest reserve, protected area or forest management area, for the purpose of ensuring compliance with the Act or any other law pertaining to the protection of forests. It is an offence under the Act to assault or obstruct an authorized officer or a forest officer acting in the execution of his duty, which is punishable by a fine of up to one hundred thousand dollars ($100,000) or imprisonment for up to twelve months. All criminal prosecutions under the Act have to be commenced within twelve calendar months of the alleged commission of the offence, unless the Court is satisfied that an authorised officer with due diligence could not have been aware within that period that the offence had been committed, in which case the Court can extend the time to prosecute as the Court deems fit.


(1) regulates access to forest resources in forest reserves and forest management areas (2) provides for the establishment of LFMCs which are intended to involve indigenous and local communities in forest management and planning (3) establishes requirement for licence to cut and/or extract timber and/or forest produce (4) establishes several criminal offences in relation to access to forests, forest resources and forest produce (5) has enforcement mechanism and personnel

(1) does not regulate access to trees and other forest resources and forest products outside of forest reserves, protected areas and forest management areas (2) provides minimal regulation of forests and forest resources and forest produce, on private lands (3) does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted (4) does not require consultation with indigenous and local communities prior to declaring areas as forest reserves, protected areas, or forest management areas.

The Forest Regulations 2001 According to the Regulations, no person shall use any road in any forest estate (a forest reserve or any other land managed by the Forestry Department) for the transport of any forest produce; or for any forest practice not authorized by the Conservator; or for any other commercial use, without having a valid road permit issued by the Conservator. Upon

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conviction for breach, persons are liable to a fine not exceeding fifty thousand dollars ($50,000) or, in default of payment, to imprisonment for a term not exceeding twelve months. The Regulations also authorise the Conservator, in his discretion, to grant timber licences or permits to remove timber and forest produce, subject to conditions, including the payment of a security deposit and the payment of stumpage fees and royalties. Thus, not only is the Forest Act the only law in Jamaica to use the term ‘biodiversity’, but the Forest Regulations 2001 also use the term ‘royalties’, albeit not in relation to intellectual property. Removal of timber or forest produce without a licence or permit is a criminal offence. The Regulations also require permits to transport or use power saws and to trade, store or purchase locally produced lumber. The Regulations make it a criminal offence for any person without a permit, in any forest estate or protected area, to (a) damage, dig, remove any sand, gravel, rock or stone; (b) cut, damage, dig, remove or collect any plant, shrub, creeper or vine or any rare or endangered species including orchids; or (c) engage in any quarry or mining activity. Similarly, it is an offence for any person without a permit, to (a) catch, collect, hunt, shoot or kill any birds or other wildlife; or (b) carry or transport any weapons in any forest estate or protected area that has been declared to be a wildlife sanctuary. Both these offences are punishable by a fine not exceeding fifty thousand dollars ($50,000) and in default of payment to imprisonment for a term not exceeding one year. Specifically, the Regulations provide that the Conservator may establish, vary or cancel standards and operational procedures for the implementation of forest practices with respect to ‘biological diversity’, ‘silviculture’, ‘botanical forest products’ and ‘forest research’. Additionally, the Conservator is empowered to establish research forest estates to promote practical teaching and applied research in forestry. The Conservator may, with the approval of the Minister, entrust the management of a research forest to an organization devoted to teaching and research. All forest management activities carried out in a research forest estate shall be for educational and research purposes and be in accordance with the conditions of the management contract. It is an offence to cut, fell or otherwise remove any trees planted or growing in a forest research area other than for research purposes.

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The Conservator is also empowered by the Regulations to apply to the Supreme Court for (i) a restraining order or an injunction to prevent the continued violation or the activity which will likely lead to a violation; and (ii) an order for the closure of any facility, or a prohibition against the continued operation of any equipment in order to prevent any violation.


(1) regulates access to forest resources in forest reserves and forest management areas (2) regulates research in forestry (3) establishes requirement for road use permits and power saw permits (4) prescribes forms for application and licence to cut and/or extract timber and/or forest produce; application and permit to remove timber and forest produce; and for application for and road use permit (5) establishes several criminal offences in relation to access to plant and animal (bird) genetic resources (6) has enforcement mechanism and personnel

(1) does not regulate access to trees and other forest resources and forest produce outside of forest reserves, protected areas and forest management areas (2) does not regulate research in forestry outside of research forest estates (3) does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted (4) prescribed application forms for permits and licences do not require applicants to disclose the intended use or purpose for which the forest produce is sought (i.e. for research, commercial, etc) (5) in considering whether to grant a permit or licence, the Conservator is not required: (a) to consult with indigenous and local communities that may live, work, or otherwise associate within the area; (b) to take steps to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

THE FISHING INDUSTRY ACT 1975 The Act provides for the protection of fish through the declaration of certain areas as fish sanctuaries and the declaration of open and closed fishing seasons. ‘Fish’ includes shell fish, crustaceans and marine or fresh water animal life.64 Any person who fishes or attempts to fish in any area declared to be fish sanctuary is liable to a fine and in default of payment to imprisonment for up to six months. A licence with or without conditions is required to catch fish utilising one of the prescribed methods under the Act:

(a) traps or pots;

(b) nets;

64 Fishing Industry Act, s. 2

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(c) spear guns;

(d) lines from a boat;

(e) diving with the use of underwater breathing apparatus including Hookah and SCUBA gear;

(f) Hawaiian sling.

Fishing for scientific research purposes may be exempted by the Minister. The Act also provides for the registration and licensing of fishermen and fishing boats. The Fishing Industry (Conservation of Conch (Genus Strombus)) Regulations, 2000 These Regulations seek to control over fishing of conch by establishing quotas. This includes individual conch quotas and the National Total Allowable Catch (NTAC). Individual conch quotas are the maximum weight of 50% cleaned conch that may be landed by any licensed fisherman.65 The NTAC is the maximum weight of 50% cleaned conch that may be landed by the aggregate of licensed fishermen.66 The NTAC is based on ‘the estimation of the total allowable sustainable yield of conch on Pedro Bank’ which is based on ‘visual surveys of the abundance of conch stocks.’67 The NTAC levels are usually set by the Fisheries Division at the beginning of each conch fishing season which is usually in November.68 The NTAC is usually adjusted each year based on an agreement in 1995 to reduce the annual conch catch by 100 tonnes each year to reach 1000 tonnes by the year 2000, and based on the tri‐annual abundance surveys of Pedro bank stock.69 The NTAC is then divided into total allowable catch for specific Fisheries Management Areas (of which Pedro Bank is the only one applicable at present) and then individual conch quotas. The quotas are set with consideration for and to balance the interests of the two main categories of conch fishers in mind: 1) the offshore artisanal sector, that is small‐scale free and scuba diving artisanal fishers who use small motorised canoes; and 2) the industrial sector, comprising larger commercial interests who use decked mother vessels and scuba and hookah divers with small auxiliary boats.70

65 The Fishing Industry (Conservation of Conch (Genus Strombus)) Regulations, 2000, Regulation 2

66 Ibid

67 Karl Aiken, Andre Kong, Stephen Smikle, Richard Appledoorn, George Warner, Managing Jamaica’s Queen Conch Resources, 2006, http://www.jamaicachm.org.jm/Article/October2006.asp

68 Ibid

69 Ibid

70 Stephanie Theile, Queen Conch Fisheries and their Management in the Caribbean, Traffic Europe, 2001, www.traffic.org/species-reports/traffic_species_invertebrates5.pdf, p. 56

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The quotas are set also considering criteria including economical, socio‐economical and other relevant factors. The quota system is monitored by requiring reporting of each catch as well as of remaining quota limits. The system is designed to conserve the conch stocks.71


(1) regulates access to fish resources in fish sanctuaries and designation of fishing seasons (2) establishes an effective quota system for conch fishing

(1) Although the conch quota system does take into account economic factors including the income earning of the different fishing sectors (artisanal and industrial), and therefore does regulate somewhat the benefits from conch resources, it could not be said to represent a benefit sharing system as envisioned by the CBD, which requires benefit sharing not only in relation to the genetic resource but to derivatives and traditional or other related knowledge. (2) Does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of fish genetic resources

THE ENDANGERED SPECIES (PROTECTION, CONSERVATION AND REGULATION OF TRADE) ACT 2000 The Endangered Species Act provides for the conservation, protection and regulation of trade in endangered species. The Act incorporates the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). There are four Schedules. The First Schedule governs endangered species that are threatened with extinction and which may be affected by trade. The Second Schedule governs species which could become extinct if trade is not regulated. The Third Schedule governs species which any contracting party wishes to regulate within its own jurisdiction. The Fourth Schedule lists Jamaican indigenous species. Domestic trade in these endangered species is controlled under the Regulations. The Endangered Species (Protection, Conservation and Regulation of Trade) Regulations 2000 Under these Regulations, an application for the issue of a permit or certificate to import, export or re‐export plant or animal specimens pursuant to the Act shall be made on a specified accompanied by the relevant fees as follows: five hundred dollars ($500) import permit; one thousand dollars ($1,000) for an export permit. An application for the issue of a

71 Ibid, p. 58

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Certificate of Origin shall also be on a prescribed form accompanied by a fee of five hundred dollars ($500). Upon approval of the application, the following fees are to be paid for the issuance of permits or certificates: 1. Import permit‐

(a) in respect of four (4) imported specimens – one thousand dollars ($1,000)

(b) in respect of no less than five (5) nor more than seventeen (17) imported specimens – two thousand dollars ($2,000)

2. Export permit‐

(a) in respect of four (4) exported specimens – one thousand dollars ($1,000)

(b) in respect of not less than five (5) nor more than seventeen (17) exported specimens – two thousand dollars ($2,000)

3. Re‐export certificate – one thousand dollars ($1,000) 4. Introduction from the sea certificate ‐ one thousand dollars ($1,000) 5. Pre‐Convention certificate ‐ one thousand dollars ($1,000) 6. Certificate of origin ‐ one thousand dollars ($1,000) A fee of fifty dollars ($50) is payable in respect of each copy or an entry in a register. The Regulation stipulates that every person who imports, exports or re‐exports any specimen specified in the First, Second, Third or Fourth Schedule of the Act shall, prior to the clearance or despatch of the specimen, present the appropriate permit or certificate for processing to the Commissioner of Customs at the point of entry or departure, who shall forward a copy of every such permit or certificate to the Management Authority. A register is to be maintained listing the name of the person to whom the permit or certificate is granted; the type of permit or certificate; the date on which the permit or certificate is granted and renewed; the date of expiration of the permit or certificate; the date and reason for revocation and suspension of the permit or certificate and in respect of suspension the period thereof; the specimen or class of specimen of flora and fauna in respect of which the permit or certificate is given; the number of the permit or certificate; and any remarks relating thereto. The Regulations specify that an applicant for an export or import permit or re‐export certificate may apply for a maximum of seventeen (17) specimens on each permit or certificate; and where the applicant wishes or intends to import, export or re‐export more than seventeen such specimens, he shall submit an additional application for specimens in excess of those seventeen (17) specimens.

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(1) regulates trade in flora and fauna which are or may become endangered, by establishing criminal offences for unauthorised access or trade (2) regulates, by the issuing of permits and Certificates of Origin, the import, export and re‐export of endangered species of plant and animal specimens

(1) only regulates access to endangered species (2) does not regulate access to ensure the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (3) in considering whether to grant a permit for research or collection, the NRCA is not required: (a) to ensure the prior informed consent of indigenous and local communities that may operate within the area in which access is sought and/or permitted; (b) to take steps to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

THE TOWN AND COUNTRY PLANNING ACT 1948 This Act gives local municipal authorities the power to make Tree Preservation Orders whereby a local authority may seek to preserve trees or woodlands in their area and prohibit wilful damage or destruction of trees, or require the replanting of trees. Local authorities may also make Development Orders to provide for protection of amenities and conservation and development of the resources of the prescribed area.


(1) regulates access to trees and woodlands within prescribed areas

(1) does not regulate access to trees and other plant resources outside of the prescribed areas (2) does not regulate access to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

THE JAMAICA NATIONAL HERITAGE TRUST ACT 1985 The Jamaica National Heritage Trust (JNHT) Act defines ‘protected national heritage’ as ‘(a) any place name; (b) any species of animal or plant life; (c) any place or object (not declared by the Trust to be a national monument), designated by the Trust to be a protected national heritage.’ The functions of the JNHT under the Act are:

a. to promote the preservation of national monuments and anything designated as protected national heritage for the benefit of Jamaica;

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b. to conduct such research as it thinks necessary or desirable for the purposes of the performance of its functions under the Act;

c. to carry out such development as it considers necessary for the preservation of any national monument or anything designated as protected national heritage;

d. to record any precious objects or works of art to be preserved and to identify and record any species of botanical or animal life to be protected.

Similar to the Institute of Jamaica, the JNHT is required to keep a register which shall be open for inspection by the public upon payment of prescribed fees. The JNHT is empowered under section 13 to designate:

a. any place name, thing or any species of animal or plant life; or

b. any place or object which has not been declared a national monument, to be a protected national heritage.

The main aim of this power is to prevent a national monument or protected national heritage from falling into a state of disrepair. The JNHT is required in the case of a species of animal or plant life, to publish annually in a daily newspaper published in Jamaica, a list of such animal or plant life designated as protected national heritage. Importantly, section 17 of the Act provides that every person who wilfully defaces damages or destroys any protected national heritage or removes any protected national heritage to a place outside of Jamaica or causes it to be so removed, shall be guilty of an offence and liable to a fine not exceeding forty thousand dollars ($40,000). or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. To date, no species of animal or plant life has ever been designated as ‘protected national heritage’ under the Act.

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The JNHT just recently commenced a review of the JNHT Act with a view to amending it. It is not clear whether it is intended to make the Act more effective as an environmental regulatory law, or whether it will remain concerned primarily with national monuments.


(1) regulates access to species of animal or plant life designated as ‘protected national heritage’ under the Act (2) establishes a criminal offence for removing any ‘protected national heritage’ to a place outside of Jamaica or causing it to be so removed

(1) does not regulate access to other species of animal or plant life which are not designated as ‘protected national heritage’ under the Act (2) does not regulate access to ensure the fair and equitable sharing of the benefits arising out of the utilization of animal or plant genetic resources (3) the JNHT is not required to consult with indigenous and local communities prior to designating species of animal or plant life as ‘protected national heritage’ (4) there is no means of enforcement provided by the Act to ensure that ‘protected national heritage’ is not removed to a place outside of Jamaica, i.e. no certificate or customs procedure (5) there is significant overlap and conflict between the JNHT Act, the Endangered Species (Protection, Conservation and Regulation of Trade) Act and Regulations, and the Natural Resources (National Parks) Regulations.

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MAIN ENVIRONMENTAL AND RELATED LAW FINDINGS It is obvious from the extent of powers given to the NRCA that it was envisioned to be the lead government agency to regulate the environment. However, at the present time the Agency is primarily concerned with harm to the environment and public health, not rights in resources. The NRCA Act has a good foundation of a permit scheme to regulate access but not benefit sharing. The National Parks Regulations, including the prescribed forms there under, provide a good foundation of a permit scheme to regulate access but not benefit sharing. However the Regulations apply only to National Parks, of which there is only one at present – the Blue and John Crow Mountains. The Wild Life Protection Act is limited in coverage and scope of protection and has no provisions requiring benefit sharing. The provisions of the Beach Control Act which regulate the licence scheme for access to and use of the foreshore and sea floor are very good and useful towards an appropriate access regime. However the Act does not include any benefit sharing provisions at all. The Forest Act and Regulations are more modern and more advanced than most of the other environmental laws in Jamaica in terms of regulating access and ensuring community participation in environmental management. The Regulations are particularly useful for regulating research on forest resources. It therefore provides a useful model to use in the development of a suitable regime to regulate access to genetic resources and traditional knowledge. However, the scope of protection of the Act and Regulations is limited in that it they only regulate access to forest resources in designated areas (forest reserves, protected areas, forest management areas and forest estates). The Act and Regulations do not require benefit sharing. While the establishment of LFMCs under the Forest Act and Regulations is a good move towards community participation in environmental management, it is still short of the internationally accepted requirements of effective participation and prior informed consent of indigenous and local communities. The Fishing Industry Act and Regulations are not capable of providing any satisfactory regulation of access and/or benefit sharing, as it is limited in scope to fishing sanctuaries, licenses, quotas and fishing seasons. The Act therefore has no provisions relating to benefit sharing. The Endangered Species (Protection, Conservation and Regulation of Trade) Act and Regulations 2000, although useful regarding its use of permits and Certificates of Origin, only regulate access to endangered species and do not provide for either benefit sharing or for effective consultation with and prior informed consent of indigenous and local communities. The Town and Country Planning Act gives general power to local authorities to regulate prescribed areas and is therefore inadequate by itself to regulate access and benefit sharing to genetic resources.

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The JNHT Act has regulation of access but limited objective of preventing disrepair, no regulation of benefit sharing, significant overlaps with other laws and weak enforcement. CONCLUDING REMARKS The main gaps and shortcomings in the environmental and related laws in Jamaica are significant. Regulation of access to genetic resources is limited, with conservation in mind, and there are no provisions relating to benefit sharing or traditional knowledge. This can perhaps be attributable to the fact that most of the laws were passed prior to the CBD. Only the Forest Act 1996 and Regulations 2001, the Endangered Species (Protection, Conservation and Regulation of Trade) Act and Regulations 2000 were passed subsequent to the CBD. However, even those laws do not take into account the provisions of the CBD. There are significant overlaps and duplications under different laws and regulations regarding permit and licensing schemes regulating access. The several schemes would need to be co‐ordinated and duplication eliminated. All of the existing permit and licensing schemes need updating to comply with the CBD by requiring more detailed information, as well requiring adequate benefit‐sharing agreements to be concluded in respect of all takings of genetic resources. Exemptions would also have to be looked at to encourage local research and enterprise and in recognition of local, traditional use by Jamaicans. The importance of indigenous and local communities must be recognised in the environmental laws in Jamaica. The issue of the Maroon treaties and Maroon land rights must be settled.72 Not only do they have a vested interest in maintaining and conserving the environment which they rely on for their daily livelihoods, but their traditional knowledge is often invaluable to science and research in plant genetics and natural product development. Jamaica must protect its genetic resources and the traditional knowledge of communities, by enacting and/or amending the requisite legislation that recognises Maroon land rights and empowers the Maroons and other communities to play meaningful roles in environmental management. There are several approaches that may be adopted in deciding how best to enact and implement the CBD in Jamaica. Some of the more relevant ones are discussed in Part III of this Report. As has been done in some countries, it may be that rather than amending each environmental and related law to accord with the CBD, a new law such as a Biodiversity Act should be enacted, which can address the rights and obligations under the CBD in a comprehensive manner. Determining the best approach for Jamaica to enact the CBD depends on several factors. However such an analysis is beyond the terms of reference of this Report.73 Nonetheless, the preceding assessment of gaps and shortcomings, particularly in relation to legislating access and benefit sharing, will be useful no matter what approach is eventually taken.

72 Paul H. Williams, Witter Urges Maroons to Enter Rights Charter Debate, in The Gleaner, October 22, 2009, http://www.jamaica-gleaner.com/gleaner/20091022/news/news1.html (accessed January 18, 2010) 73 Please see related Report of Mrs. Carole Excell as part of this Project – ‘An Assessment of the Current Legislative Framework: the Convention on Biological Diversity in Jamaica’

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INTELLECTUAL PROPERTY AND RELATED LAWS This section seeks to analyse the suitability of existing intellectual property laws to adequately regulate access and benefit sharing, especially in relation to traditional knowledge generally and regulating access and benefit sharing in respect of the genetic resources and traditional knowledge of indigenous and local communities. THE JAMAICA INTELLECTUAL PROPERTY OFFICE ACT 2002 The Act establishes the Jamaica Intellectual Property Office (JIPO) with the mandate to administer all intellectual property laws of Jamaica, which include in the areas of Trade Marks, Industrial Designs and Geographical Indications, Copyright and Related Rights, Patent, New Plant Varieties and Layout‐Designs (Topographies). JIPO is also responsible to promote the progressive development of intellectual property rights in Jamaica. Its objectives include:

a. To contribute to national economic growth and development through the proper protection, administration and enforcement of intellectual property rights.

b. To provide Jamaican creators, investors, and commercial enterprises, as well as foreign rights holders with modern and comprehensive procedures and facilities for the protection of their intellectual property rights.

c. To facilitate an international level of intellectual property protection for Jamaican rights holders.

d. To heighten public awareness of the importance and economic value of intellectual property rights and the need for the protection of these rights.

e. To facilitate the improvement of the intellectual property system in light of new technologies and globalisation of trade, through the modernization of the laws and the accession to relevant international treaties and agreements.74


(1) establishes government agency to administer and be responsible for intellectual property laws, procedure, protection and development in Jamaica

(1) does not specifically refer to traditional knowledge

THE PATENT ACT 1857 The Patent Act allows an individual or other legal entity to obtain an exclusive property in a new invention and discovery or improvement, by the granting of Letters Patent for the invention for a term not exceeding fourteen years, renewable for a further seven years. The patent gives the owner the full and exclusive right to make, use and licence to others to use, the new invention or discovery or improvement.

74 http://www.jipo.gov.jm/pages/aboutus.htm

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However a patent can only be granted for inventions, discoveries and improvements which have not been known or used in Jamaica before. To obtain a grant of Letters Patent, the applicant must prove novelty and public utility. New and useful processes, machines, manufactures or compositions of matter, are all patentable.75 Additionally, before the person or company can obtain a patent, they must provide a written description of the invention, including how it is made and how to use it. Indigenous and local communities could therefore apply for Letters Patent in respect of traditional herbal medicines and remedies, traditional roots drinks and tonics and the like. However, while it would not be impossible to obtain a patent over such products embodying this type of knowledge, much traditional herbal knowledge is common in Jamaica and not novel. Also, patent registration can only be done by individuals or other legal entities. Given that the period of protection is limited, that it takes on average 3 years from the time of filing to obtain a grant, and that there exists no provision for community ownership, the Patent Act does not provide effective protection of traditional knowledge as a community resource. It may be apt to protect an invention or advancement in knowledge by an individual herbal doctor, but not to vest proprietary rights in the community in respect of that knowledge. In practice, the Patent Act is used mainly by foreign enterprises to register pharmaceutical and other chemical inventions, some of which utilise genetic resources and/or traditional knowledge in Jamaica. Of great importance to indigenous and local communities therefore, is the fact that the Act does not include any requirement for prior informed consent, disclosure of origin or benefit sharing for inventions which use indigenous genetic resources or are based on traditional knowledge. To implement and enforce such principles would require specific and efficient systems to inform JIPO of the existence of forms of TK. The use of databases has been advanced as a possible solution, but the effect of prior disclosure in the public domain would be devastating. Another proposed alternative, the institution of private databases accessible only by patent examiners, would prevent the TK from being classified as prior art, in the public domain, creating a ‘catch 22’ problem. Nevertheless, the Patent Act is the intellectual property law that is most relevant to access and benefit‐sharing under the CBD because very often, patents are obtained for so‐called new inventions which may not be new, or may be slight improvements upon existing traditional knowledge, and therefore, under the CBD, any rights existing in that traditional knowledge which may be in whole or part a significant and substantial aspect of the ‘invention’, must be respected. This includes ensuring that any financial benefits obtained in respect of such patents ought to be shared with those whose traditional knowledge in whole or in part plays a significant and substantial role in the patented ‘invention’ or ‘improvement’.

75 JIPO website: http://www.jipo.gov.jm/pages/patents.htm (accessed 17 December 2009).

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Very often, because traditional knowledge is often not written but orally known and practised, it is not the subject of patent applications by locals, who seldom if ever have the will or ability to provide a technical, written description of the invention or improvement, including how it is made and how to use it. Therefore, often persons other than the traditional knowledge holders conduct research with or among local communities or researchers, and then take that traditional knowledge and develop patents founded upon that knowledge. While it is possible, under section 25 of the Act, to challenge the grant of a patent on the ground that the alleged inventor is not the true and first inventor, or that the ‘invention’ is not a new invention as it has been traditionally used in Jamaica for some time prior, it is very expensive to challenge a patent application, and much more so to challenge a patent once granted. The Patent Act is administered by JIPO.


(1) allows for the revocation of a patent on the basis that the invention is not new or that the patentee is not the true and first inventor

(1) prior to granting a patent, JIPO is not required: (a) to ensure disclosure of origin, by the patent applicant, of the genetic resources and/or traditional knowledge used in the invention; (b) to ensure the prior informed consent of indigenous and local communities from which such genetic resources and/or traditional knowledge was derived; (c) to ensure the fair and equitable sharing of benefits arising out of the utilization of genetic resources and/or traditional knowledge used in the invention (2) does not allow for challenges to the grant of a patent on the basis of non‐disclosure of origin, lack of prior informed consent, or lack of fair and equitable benefit‐sharing (3) does not allow for revocation of a patent on the basis of non‐disclosure of origin, lack of prior informed consent, or lack of fair and equitable benefit‐sharing

THE COPYRIGHT ACT 1993 Under the Copyright Act 1993, original literary, dramatic, musical and artistic works, as well as sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions, are eligible for copyright protection.76 It is therefore possible to protect by copyright original literary, dramatic, musical and artistic works, as well as sound 76 Copyright Act 1993, s. 6(1)

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recordings, films, broadcasts, cable programmes and typographical arrangements of published editions, that use, document, portray or otherwise contain aspects of traditional knowledge. Copyright protection includes the ‘economic’ rights of the copyright owner to restrict copying, performing, broadcasting and adaptations of works,77 as well as the ‘moral’ rights to be identified as author78 and to object to derogatory treatment79 of the work and to false attribution of others’ works.80 However, several features of the Copyright Act make it unsuitable to provide adequate protection for traditional knowledge. First, traditional knowledge embodied in literary, dramatic or musical works, may be protected by the Copyright Act only if they have been ‘recorded in writing or otherwise’,81 which is often not the case in Jamaica. The rich, oral and intangible traditional knowledge would therefore not be protected. Additionally, there is no provision in the Copyright Act to object to, challenge, or otherwise prevent some one or company from claiming copyright in a work embodying traditional knowledge for which no consent was obtained from the traditional knowledge owners or holders. Further, copyright protection expires 50 years from the end of the calendar year in which the author dies (literary, dramatic, musical or artistic works)82 or the year in which they were created or made public (sound recordings and films),83 after which the work enters the public domain. This limited term of protection makes copyright inadequate to enable indigenous and local communities to positively protect their traditional knowledge, because (1) the objective of protection very often is for the community to be able to continue to pass distinctive ancestral traditions down to future generations in perpetuity; and (2) according to copyright law, after the expiry of the limited term, the knowledge loses copyright protection and enters the public domain. A major weakness of the Copyright Act is also that it has not been updated to implement the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996 (the Internet treaties). The Act therefore does not offer adequate protection to authors, performers or phonogram producers against unauthorised uses of works on the Internet. One of the significant legal hurdles remains that the indigenous and local communities would have to register themselves as legal entities, or claim a beneficial interest through the use of representative actions under Part 21, Rule 21.1 of the Civil Procedure Rules 2002, in order to register their own intellectual property, or to challenge the intellectual property registration by others. It is sometimes difficult to determine which aspects of a work are the underlying traditional expressions of a community, and which aspects are the personal creative expressions or

77 Ibid, s 9. 78 Ibid, s 14. 79 Ibid, s 15. 80 Ibid, s 16. 81 Ibid, s 6(2). 82 Ibid, s 10(1). 83 Ibid, s 11(1).

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interpretations of the individual author or artist.84 For example, a book is published, as has often been the case, by overseas based researchers on the traditional herbal remedies of the Maroons, after extensive consultations with the Maroons in Maroon communities. Intellectual property law has however devised mechanisms that deal with such issues. The individual authors are entitled to copyright for the authorship of the book, and the Maroon community is entitled to moral rights, including the right to be credited for the underlying body of traditional knowledge of which the book portrays a part. The Maroon community as a collective would therefore be entitled to a share of benefits arising from the use of their traditional knowledge in the book. In that respect, the Copyright Act and the system of benefit sharing embedded within copyright law, would be of much value in legislating, negotiating and implementing benefit sharing rules and procedures in Jamaica.


(1) protects original literary, dramatic, musical and artistic works, as well as sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions (2) has built‐in mechanism to deal with moral rights and joint authors (benefit sharing)

(1) authorship criteria does not take into account the nature of traditional knowledge (2) knowledge has to be recorded to be entitled to protection (3) limited term of protection, then knowledge enters the public domain (4) incapable of protecting traditional knowledge on the internet (5) does not ensure the fair and equitable sharing of benefits arising out of the utilization of traditional knowledge

THE TRADE MARKS ACT 2001 The Trade Marks Act provides for the registration of signs ‐ including words, names, designs, letters, numerals, symbols and/or colours85 ‐ as property. Once registered, trade marks are entitled to protection against unauthorised use of the identical or a similar sign, in relation to identical or similar goods or services, in the course of trade.86 The Act governs signs which can be graphically represented, and does not refer or apply to biodiversity‐related traditional knowledge. It is possible for there to be knowledge related to land and the environment that is embedded in a sign, symbol, logo or design. However, it is clear from the wording of Article 8(j) of the CBD that this is not the type of knowledge of indigenous and local communities that is contemplated as relevant to the CBD. Certification Marks are different. A Certification Mark distinguishes goods or services that are certified according to certain characteristics and standards, from those which are not so certified.87 Characteristics that may be certified include origin, material, mode of

84 T. Janke, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (2003), at 64, available at http://www.wipo.int/tk/en/studies/cultural/minding-culture/studies/finalstudy.pdf) (accessed 18 December 2009). 85 Trade Marks Act 2001, s 2. 86 Ibid, ss 9(2), 9(3). 87 Ibid, Sch 2, para 1.

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manufacture of goods or performance services, quality and accuracy.88 Registration of a certification mark requires the filing of regulations that identify characteristics to be certified, the certifying body that is to test those characteristics, and the methods to be used for testing and supervision.89 Certification Marks such as ‘Genuine Maroon Product’ or ‘Authentic Rastafari Product’ could therefore be used to distinguish and thereby protect goods and services using genuine and authentic traditional knowledge and/or genetic resources of the Maroons, from the imitations. Additionally, a Certification Mark could be used to indicate a combination of authenticity as well as origin, such as ‘Genuine Rastafari Product, Made in Jamaica’, or ‘Authentic Maroon Product, Made in Accompong’. A collective mark is a trade mark distinguishing the goods or services of members of an association, which is the proprietor of the mark, from those of other undertakings.90 The main purpose of the mark is to indicate that those using it belong to a specific association, supported by a registration requirement that the proprietor shall file regulations governing use of the mark.91 Like the Certification Mark, registration of a Collective Mark requires the filing of regulations that identify characteristics to be certified, the certifying body that is to test those characteristics, and the methods to be used for testing and supervision.92 However, certification and collective marks only offer protection where the goods or services deemed infringing are displaying or indicating an inaccurate origin or standard. Therefore it may offer protection where the infringing good or service utilising traditional knowledge without consent asserts that it is authentic, genuine, or made in ‘X’ place (inaccurately). It however does not offer protection where a good or service is utilising traditional knowledge without consent but is not asserting it to be genuine, or authentic, or made in ‘X’.

88 http://www.jipo.gov.jm/pages/trademarks.htm (accessed 17 December 2009). 89 Trade Marks Act 2001, Sch 1, para 4. 90 Trade Marks Act 2001, Sch 1, para 1. 91 Ibid, Sch 1, para 4. 92 Trade Marks Act 2001, Sch 1, para 4.

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The main gap here is that stating where the good or service is made is required, but there is no requirement to indicate the origin of any traditional knowledge or genetic resource used in the manufacture of the good or provision of the service.


(1) registered trade marks, certification marks and collective marks are protected (2) requires users of the marks to state the origin of the good or service

(1) certification and collective marks only offer protection where the goods or services deemed infringing are displaying or indicating an inaccurate origin or standard (2)no requirement to indicate the origin of any traditional knowledge or genetic resource used in the manufacture of the good or provision of the service (3) does not ensure the fair and equitable sharing of benefits arising out of the utilization of traditional knowledge

THE MERCHANDISE MARKS ACT The Merchandise Marks Act provides for criminal prosecution of persons for forged, fraudulent, or deceptive use of trade marks and trade descriptions, and for the sale of goods with forged trade marks or false trade descriptions.93 Offences are punishable by sentences of up to two years and forfeiture of the goods.94 Provision is also made for interim measures including search and seizure of goods suspected of having forged trade marks or false trade descriptions,95 as well as the prohibition of importation of such goods.96 Limitations on prosecution under the Act apply three years after commission of the offence, or one year after discovery of the offence, whichever is earlier.97 The Merchandise Marks Regulations The Regulations provide for border control measures. Customs officers are required to act upon allegations that prohibited goods have landed, are in transhipment, or are about to be imported or exported,98 and to detain such goods.99 Informants are required to deposit with Customs a sum to cover the cost of detention,100 and may be required to pay a security deposit of 20% of the value of the goods, as well as a bond for double the value of the goods, with two sureties101 if, upon examination, the Customs officer considers that the goods are not prima facie detainable.102

93 Merchandise Marks Act, s 3. 94 Ibid, s 3. 95 Ibid, s 11. 96 Ibid, s 14. 97 Ibid, s 13. 98 Merchandise Marks Regulations, Reg 9. 99 Ibid, Regs 2(a), 3. 100 Ibid, Reg 3(2). 101 Ibid, Reg 5. 102 Ibid, Reg 4.

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The sums payable as well as the procedure would likely present difficulty for indigenous and local communities to take advantage of the provisions of the Merchandise Marks Regulations.


(1) provides for criminal prosecution of persons for forged, fraudulent, or deceptive use of trade marks and trade descriptions, and for the sale of goods with forged trade marks or false trade descriptions (2) provides for border control measures to regulate the import and export of goods with forged trade marks or false trade descriptions

(1) the sums payable and the procedure to enforce border control measures are prohibitive

THE DESIGNS ACT 1937 The Designs Act 1937 provides for registration and thereby copyright protection103 of designs, meaning the ornamental or aesthetic aspects of an article. The design may consist of three‐dimensional features, such as the shape or configuration of an article, or of two‐dimensional features, such as patterns or colours, applied by any means, ‘whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical or chemical, separate or combined’.104 Like trademarks under the Trade Marks Act, the design must be registered in respect of specified classes. Design registration provides protection for the design against any fraudulent or obvious imitation, being applied to articles of manufacture or substances offered or exposed for sale, in the class or classes of goods in which such design is registered. The proprietor of the design is given a right to recover damages for infringement.105 The Designs Act could therefore be used to protect some aspects of traditional knowledge, including traditional knowledge of indigenous and local communities. For example, the Act may be used to register some Maroon and Rastafari handicraft, such as jewellery, art and craft, house wares, sculpture, textile designs and other designs of traditional dress and shoes, as well as the designs of traditional drums, all of which may use, embody or be derived from genetic resources found within indigenous and local communities and/or biodiversity‐related traditional knowledge. Encouragingly, societies, institutions or

103 Defined in s 2 as the exclusive right to apply a design to any article of manufacture or to any substance, artificial or natural or partly artificial and partly natural, in the class or classes in which the design is registered. 104 Designs Act 1937 s 2. 105 Ibid, s 12.

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organisations of a public, philanthropic, or self‐help character may apply to the Minister106 for exemption from all fees under the Act.107 The requirement that the design be ‘new and original’108 may however effectively preclude registration of many traditional designs. A registered design, even after being granted, may also be subject to cancellation upon application, on the basis that it was published in Jamaica prior to registration.109 Further, if a registered design is used in manufacture in any foreign country and is not used in Jamaica within six months of registration, copyright in the design shall cease.110 Another weakness of the Designs Act from a community perspective is that protection expires after only fifteen years.111


(1) may be used to protect some aspects of traditional knowledge, such as handicraft (including jewellery), art and craft, house wares, sculpture, textile designs and other designs of traditional dress, shoes, instruments and utensils, which use, embody or are derived from genetic resources and/or biodiversity‐related traditional knowledge (2) has built‐in mechanism to deal with moral rights and joint authors (benefit sharing)

(1) registration criteria does not take into account the often ancient and unknown origin of traditional knowledge (2) limited term of protection, then knowledge enters the public domain (3) does not ensure the fair and equitable sharing of benefits arising out of the utilization of traditional knowledge

THE PROTECTION OF GEOGRAPHICAL INDICATIONS ACT 2004 In addition to certification and collective marks being available under the Trade Marks Act to indicate the geographical origin of certain goods, the Protection of Geographical Indications Act 2004 provides specific protection in a similar way, by use of what is known as geographical indications. The Protection of Geographical Indications Act 2004 defines a geographical indication (GI) as ‘an indication which identifies a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.’112 Protection offered by the Act includes the right to apply to the Court to prevent the use of any designation or presentation of a good that indicates or suggests that the good originates in a geographical area other than the true place of origin, in a manner which misleads the

106 Ibid, s 2. 107 Ibid, s 28. 108 Ibid, s 4. 109 Ibid, s 11(2). 110 Ibid, s 11(1). 111 Ibid, s 7(1). 112 Protection of Geographical Indications Act 2004, s 2.

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public as to the geographical origin of the good.113 The Act also makes it a criminal offence to so mislead the public, punishable on summary conviction to a one million dollar fine and/or twelve months imprisonment or, on conviction before a Circuit Court, to a fine and/or five years imprisonment.114 Under the Act the Registrar may refuse to register or may revoke a trademark that contains or consists of a GI relating to a good that does not originate in the indicated territory, if the use of the indication in the trademark is likely to mislead the public as to the true place of origin.115 It is to be noted however that the GI is not a totally exclusive property right, such as a trademark is. Any producer active in the specified geographical area, whether or not a member of the community that registered the indication, has the right to use it in the course of trade, provided he does so in relation to goods that possess the quality, reputation or other characteristics designated by the indication.116 Therefore, the GI protection is limited in that despite the use of a GI by the Maroon community living in a particular geographical area, there may be others living there, or persons who have relocated to produce there, who although they are not members of the indigenous or local community would nevertheless be entitled to use the GI, provided that some quality, characteristic or reputation of the goods produced there is attributable to the geographical area. The GI may therefore be more suited for use by indigenous and local communities which exist in situ and function largely communally, such as the Maroon communities of Accompong, Moore Town, Charles Town, or Scott’s Hall, which function within clearly identified geographical areas in Jamaica, as compared to other communities which may be more widely dispersed across different geographical areas in Jamaica. Protection of a GI under the Act does not require registration.117 Any producer or group of producers carrying on an activity in the specified geographical area may apply for registration118 by submitting an application detailing the good(s), geographical area and indication, and the quality, characteristic or reputation of the good attributable to the geographical area.119 The criminal offences established and fines prescribed by the Act are good. The main problem, as with Certification and Collective Marks, is that there is no requirement to indicate the origin of any traditional knowledge or genetic resource used in the manufacture of the good, or provision of the service. The Act however has not as yet been brought into

113 Ibid, s 3(1)(a). 114 Ibid, s 7(1). 115 Ibid, s 17. 116 Ibid, s 11. 117 Ibid, s 4(1)(a). 118 Ibid, s 9(2)(a). 119 Ibid, s 9(3).

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operation by the Government, which is awaiting the conclusion of procedural regulations.120


(1) protects against goods that falsely indicate or suggest that they originate in a specified geographical area (2) establishes criminal offences for persons who mislead the public as to the geographical origin of goods

(1) Any producer active in the specified geographical area, whether or not a member of the community that registered the indication, has the right to use it in the course of trade, provided he does so in relation to goods that possess the quality, reputation or other characteristics designated by the indication (2)no requirement to indicate the origin of any traditional knowledge or genetic resource used in the manufacture of the good or provision of the service (3) does not ensure the fair and equitable sharing of benefits arising out of the utilization of traditional knowledge

THE SCIENTIFIC RESEARCH COUNCIL ACT 1960 The duty of the Scientific Research Council (SRC) is ‘to undertake, foster and co‐ordinate scientific research in this Island and to encourage the application of the results of such research to the exploitation and development of the resources of this Island.’121 This includes duties:

a. to collect, collate and review information concerning scientific research schemes or programmes relevant to the development of the resources of this Island whether such scientific research schemes or programmes are being or have been undertaken in this Island or not;

b. to co‐ordinate scientific research schemes and programmes undertaken by departments and agencies of the Government of this Island, by statutory bodies or authorities, and, subject to their consent, by any other persons or organizations engaged in scientific research in this Island;

c. to foster and, where the Council thinks fit, to undertake and carry out, scientific research and investigation relating to‐

i. the development and utilization of the resources of this Island;

ii. the improvement of existing technical processes and methods:

120 Dianne Daley and Nicole Foga, “Jamaica: Beyond the TRIPs Agreement”, at http://www.managingip.com/Article.aspx?ArticleID=1450368 121 Scientific Research Council Act 1960, s. 5

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iii. the development of new technical processes and methods for application to the expansion or creation of industries and to the utilization of waste products;

d. to encourage persons engaged in any industry to undertake scientific research in connection with such industry on a co‐operative basis;

e. to establish and maintain a scientific information centre for the collection and dissemination of scientific and technical information;

f. to give any Minister such advice as such Minister may require in connection with any matter on which, by virtue of the provisions of this Act, the Council is competent to give advice.122

The Act gives the SRC wide powers to appoint such committees as it may think fit to advise the Council in the exercise of any of its powers or the performance of any of its functions, or to carry out on any duties on its behalf. The SRC is also authorised to appoint and employ a Technical Director and such other officers, agents and servants as it thinks necessary for the proper carrying out of its duties. The SRC is also specifically empowered under the Act, with the approval of the Minister, to provide out of its funds and resources scholarships and other awards for the training of persons in scientific research. Similarly, the SRC is authorised to give such financial or other assistance as it thinks fit to encourage persons undertaking scientific research. Regarding the intellectual property rights that will arise from any discovery and invention, the Act stipulates that ‘all discoveries and inventions made by the Council or any of its officers, agents and servants in the performance of its functions under this Act shall be vested in the Council’. Consistent with its duty to encourage innovation, the Act allows the SRC to make any discovery or invention available to the public subject to the payment of fees or royalties, which fees or royalties may be waived by the SRC. Additionally, the SRC is empowered to pay bonuses or royalties to persons who make discoveries or inventions in the course of any research undertaken by, or carried out under the direction of, the SRC, irrespective of whether those persons are members, officers or servants of the Council. Confidential information is protected from disclosure by section 18 of the Act which makes it a criminal offence for any member, officer, agent or servant of the SRC to ‘publish or communicate to any person otherwise than in the course of his duties as a member, officer, agent or servant of the Council, any information acquired by him in the course of such duties… or any information which to his knowledge has been disclosed in contravention of this Act’. The penalty upon conviction is a fine not exceeding six hundred dollars ($600) or to imprisonment with or without hard labour for a term not exceeding two years, or to both such fine and imprisonment.

122 Ibid, s. 5(2)

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The Act expressly gives the SRC the power to make Regulations ‘for the better carrying out of the purposes of this Act’, subject to the approval of the Minister. This can provide the flexibility to the SRC to recommend legal reform regarding its duties under the Act.


(1) establishes government agency to be responsible to advance scientific research and capacity in Jamaica (2) provides for the assignment and sharing of intellectual property rights and royalties to encourage scientific innovation and research

(1) does not specifically refer to traditional knowledge

THE INSTITUTE OF JAMAICA ACT 1978 The duties of the Institute of Jamaica (IOJ) under the Act are:

1. to establish and maintain a public library, reading room and collections and preservations of cultural, scientific and historical works, illustrations and artefacts;

2. to provide, or assist in making provision for the:

a. reading of papers,

b. the delivery of lectures and

c. the conduct of courses of instruction,

d. the carrying out of research,

e. the holding of examinations and the conferring of awards (whether documentary or otherwise); and

f. for the establishment and maintenance of other institutions of learning, museums, galleries, halls or other places, for the dissemination, encouragement and development of culture, science, history and any other subject connected with the functions of the IOJ;

3. to provide awards, prizes and other recognition for the encouragement of cultural, scientific and historical work in Jamaica; to provide for the holding from time to time of cultural, scientific and historical exhibitions;

4. to compile, publish, distribute or disseminate (or assist in so doing) any book, volume or part thereof, or newspaper, sheet of paper or other printed material, chart or plan, or any sound recording, magnetic tape or video tape or other medium for the dissemination of sounds or the transmission of visual images or pictures, which in the opinion of the IOJ is of cultural, scientific, historical or national interest;

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Pursuant to the Act the IOJ provides a centre for the deposit of books, periodicals, newspapers, pamphlets, letterpress sheets, music sheets, maps, plans, charts or tablets of cultural, scientific, historical or national interest.


(1) allows for the compilation and maintenance of archives of traditional knowledge

(1) does not regulate access to traditional knowledge (2) does not ensure the fair and equitable sharing of the benefits arising out of the utilization of traditional knowledge (3) prior to granting access to traditional knowledge, the IOJ is not required: (a) to ensure the prior informed consent of indigenous and local communities from which such traditional knowledge may have been derived, or which is otherwise associated with and identified by the traditional knowledge to which access is sought and/or permitted; (b) to take steps to ensure the fair and equitable sharing of any benefits arising out of the utilization of genetic resources to which access is permitted

ACCESS TO INFORMATION ACT 2002 The stated objects of the Access to Information Act are “to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely governmental accountability; transparency; and public participation in decision making.” The Act seeks to do this by granting to the public a general right of access to “official documents held by public authorities”. The Act nonetheless seeks to “balance that right against the public interest in exempting from disclosure governmental, commercial or personal information of a sensitive nature.”123 Under the Act, every person shall have a right to obtain access to an official document unless the document is exempt. The right is not limited to every citizen or every resident of Jamaica, but to ‘every person’.124 An ‘official document’ means a document held or created on or after January 5, 1974 by a public authority in connection with its functions as a public authority. This applies to documents in the possession, custody or control of the public authority. Included in the definition of ‘documents’ are any disc, tape, sound track, film

123 Access to Information Act, s. 2

124 Ibid, s. 6(1)

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(including microfilm), negative or other device in which sounds, images or other data are embodied, whether electronically or otherwise.125 The Act is applicable to all ‘public authorities’, including ministries, departments, executive agencies, statutory bodies or authorities, and other agencies of Government. Therefore the Act is applicable to the Ministry of Information, the Ministry of Agriculture, the Ministry of Youth, Sports and Culture, the Office of the Prime Minister and the Ministry of Environment, all of which may have in their possession documents containing aspects of the traditional knowledge of communities in Jamaica. Documents relating to specified subject matter are exempt from access for a period of twenty years after they have been created. These include documents related to the Governor General, judicial functions or officers, national security or intelligence,126 as well as documents which, if disclosed, could result in the destruction of or damage to any historical, archaeological or anthropological resources, national monument, protected national heritage, endangered plant or animal species, or any other rare or endangered living resource.127 The Act also exempts from disclosure any document which, if disclosed would reveal trade secrets or diminish the commercial value of any other information.128 The public authority may grant access to an official document in a different format other than that requested, if the grant of access in the requested format would, inter alia, constitute an infringement of copyright.129 Further, access may be denied if disclosure would be in breach of confidence or copyright.130 However, no remedy will exist for the victim of any breach of confidence or copyright caused by government disclosure under the Act, if access was granted ‘in the bona fide belief that the grant of such access is required’ by the Act.131 The Act expressly states that where an official document is open to access by the public pursuant to any other ‘enactment’, as part of a public register or otherwise, or available for purchase by the public in accordance with administrative procedures established for that purpose, access to that document shall be obtained in accordance with that enactment or procedures.132

125 Ibid, s. 3

126 Ibid, s. 5(6)

127 Ibid, s. 21

128 Ibid, s. 20(1)

129 Ibid, s. 9(3)(b)

130 Ibid, s. 33(1)

131 Ibid, s. 33(2)

132 Ibid, s. 6(4)

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The Act also authorises the responsible Minister to exempt any statutory body or authority from the application of the Act, subject to affirmative resolution.133


(1) The Act is applicable to all ‘public authorities’, including ministries, departments, executive agencies, statutory bodies or authorities, and other agencies of Government. This includes the Office of the Prime Minister, the Ministry of Environment, the Ministry of Agriculture, the Ministry of Information and the Ministry of Youth, Sports and Culture (which includes the Institute of Jamaica, under which falls the ACIJ/JMB). (2) Exempt documents include those which, if disclosed, could result in the destruction of or damage to any historical, archaeological or anthropological resources, national monument, protected national heritage, endangered plant or animal species, or any other rare or endangered living resource. (3) The Act also exempts from disclosure any document which, if disclosed would reveal trade secrets or diminish the commercial value of any other information, or would be in breach of confidence or copyright. (4) The responsible Minister may exempt any statutory body or authority from the application of the Act.

(1) While the Act and the democratic principles upon which it is founded are laudable, the balance of rights and safeguards in relation to intellectual property is inadequate, and in relation to indigenous and minority communities is non‐existent. (2) Does not specifically mention cultural group or collective or community rights (3) Under the Act, ‘every person’ shall have a right to obtain access to an official document unless the document is exempt. This would include Jamaicans as well as overseas individuals or entities. (4) There is no requirement for the disclosure of the purpose of access and no regulation of the use of information obtained. (5)Sensitive information related to a particular community, its cultural heritage, genetic resources and traditional knowledge, may be accessed without prior informed consent of the communities. (6) No remedy will exist for the victim of any breach of confidence or copyright afforded by government disclosure under the Act, if access is granted ‘in the bona fide belief that the grant of such access is required’ by the Act. (7) Does not regulate access to ensure the fair and equitable sharing of the benefits arising out of the utilization of animal or plant genetic resources.

133 Ibid, s. 5(6)(d)

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MAIN INTELLECTUAL PROPERTY AND RELATED LAW FINDINGS

1. The Patent Act is the intellectual property law in Jamaica that is most relevant to the CBD provisions of access and benefit sharing in respect of genetic resources and biodiversity‐related traditional knowledge. However, it has no provision enforcing the CBD and Bonn Guidelines regarding prior informed consent, disclosure of origin, and benefit sharing. It is in need of substantial amendment in order to provide adequate intellectual property law protection to traditional knowledge within the context of the CBD.

2. The Copyright Act is relevant to the CBD provisions of access and benefit sharing in respect of genetic resources and biodiversity‐related traditional knowledge, to the extent that it can regulate rights in works that embody, portray, or otherwise contain aspects of traditional knowledge, e.g. herbal remedy books, audio and video recordings of traditional knowledge being explained or practised. However to be entitled to copyright protection the knowledge must be 'original' and 'recorded'. Further, the Copyright Act has limited duration of protection, and provides no copyright protection over the internet. It has no provision capable of preventing or invalidating the acquisition, by individuals or organizations, of copyright in literary, dramatic, musical and artistic works, or performances, photographs, sound and video recordings of such works, which have recorded or otherwise used traditional knowledge without the prior informed consent of indigenous and local communities.

3. The Trade Marks Act has limited application to genetic resources or biodiversity‐related traditional knowledge in Jamaica. Certification and Collective Marks can regulate indications of origin of goods and services which embody, use or contain traditional knowledge, but do not offer exclusive protection. The Act has no provision requiring the prior informed consent of indigenous and local communities, before allowing the registration of trademarks which embody traditional knowledge. Concomitantly, the Act is incapable of preventing or invalidating the registration, by individuals or organizations, of trademarks which embody traditional knowledge without the prior informed consent of indigenous and local communities.

4. The Merchandise Marks Act and Regulations provides substantial criminal law enforcement for the Trade Marks Act. However, the procedure and costs are prohibitive.

5. The Designs Act is useful to protect traditional handicraft, arts, jewellery and the like which use genetic resources and/or traditional knowledge of indigenous and local communities. Protection however is limited to 15 years.

6. The Protection of Geographical Indications Act is very similar to the Certification Marks under the Trade Marks Act. It is good in that it regulates indications of origin according to an internationally‐recognised system. However it does not regulate access or benefit sharing issues and has not been brought into force as yet.

7. In general, traditional, customary and collective unregistered ownership of intellectual property rights and traditional knowledge is not recognised by Jamaica’s intellectual property laws.

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8. The Scientific Research Council Act is useful in that it gives a dedicated organization the lead responsibility for the scientific study and exploitation of Jamaica’s natural resources. However the Act does not refer to traditional knowledge and there needs to be more harmonization between the SRC and other related organizations and Government departments.

9. The Institute of Jamaica Act has a wide remit to preserve aspects of Jamaica’s cultural, scientific and historical heritage. However the Act is inadequate in terms of lacking any provisions which could be used to regulate access and benefit sharing in respect of traditional knowledge.

10. The Access to Information Act allows unrestricted access to documents which may contain traditional knowledge, without any regulation of access to ensure prior informed consent of communities and fair and equitable benefit sharing. It is possible therefore for an access and benefit sharing regime to be enacted, that would then operate essentially as an exemption from the Access to Information Act. Within the framework of this access and benefit sharing regime would be where a more appropriate balance of state, community and individual rights should be achieved and details of access and benefit sharing procedures clearly outlined.

11. Jamaica’s intellectual property laws, as they exist at present, do not:

protect traditional knowledge;

protect the intellectual property and traditional knowledge rights of indigenous and local communities; or

regulate access to ensure benefit‐sharing in respect of genetic resources and traditional knowledge.

They therefore must be amended in order to comply effectively with the CBD.

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CONCLUDING REMARKS The main gaps and shortcomings in the intellectual property and related laws in Jamaica are also significant. There are no provisions requiring benefit sharing and there is no protection for traditional knowledge. There has been no attempt to enact any policies, laws or procedures to regulate the acquisition of intellectual property rights in relation to genetic resources and/or traditional knowledge. Therefore the few arrangements which have been implemented have been done in the absence of any law or established procedure, using private contract terms such as embodied in Material Transfer Agreements, Research Collaboration Agreements, Commercial Agreements and Memoranda of Understanding. This is a major shortcoming as effectively, genetic resources and traditional knowledge in Jamaica, without such intellectual property regulation, remain vulnerable and unprotected against bioprospectors and others who for many years have conducted unregulated plant genetic research in Jamaica. Jamaica is attracting ever‐increasing interest culturally. This has been significant most recently in the aftermath of the Beijing Olympics. For example, one of the consequences has been the rumoured qualities of local resources such as the Yams grown in the parish of Trelawny, home of the fastest man in the world the Honourable Mr. Usain Bolt, OJ. The need to significantly enhance our intellectual property laws is key to protecting local resources and preventing exploitation without any associated national benefits. The silence of the intellectual property laws regarding indigenous and local communities also needs to be quickly reviewed and amended. Not only are these communities the key to environmental sustainability and viability, but many of these communities are increasingly demanding recognition of and protection for their cultural rights. The four most significant and culturally distinct indigenous communities in Jamaica today are the Maroons, Kumina, Revival, and Rastafari. Just as the world seeks new science from traditional practices, so does is the world taking renewed interest in all aspects of the cultures and traditions of such communities. A significant and undeniable element in Jamaica's tourism product is that rich, African‐retentive culture embodied and maintained through generations in these communities. There is therefore much benefit to be gained by the communities and Jamaica by the enactment of appropriate laws to recognise the rights of these communities to their traditional lands, genetic resources and traditional knowledge. Like the environmental laws, the intellectual property laws in Jamaica are to be found in separate, individual pieces of legislation. This approach can be operationally effective if administration of the several laws is undertaken by a single agency or a few well co‐ordinated agencies. This is the case in relation to the various intellectual property laws – which are all administered by one agency (namely JIPO). However this stands in major contrast to the administration of environmental laws. By contrast, the many more environmental laws are administered by a number of agencies, without a strong central coordination. This inevitably has resulted in duplications, overlaps and gaps in administration. It will therefore (for example) be far easier to amend the intellectual

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property laws, as well as to implement those amended laws, than will be the case with the environmental laws. Another difference is that the intellectual property laws generally do not specifically address environmental issues or resources, although those laws, by virtue of the CBD imperative of benefit sharing, are applicable to the environment. As a result, the CBD does not require intellectual property laws to be amended to specifically take into account new environmental concerns. However the CBD does require our environmental law(s) to specifically address access and benefit sharing, both of which, especially the latter, require amendments of an intellectual property law nature. What the CBD requires is that intellectual property laws, in order to comply with the CBD, provide IP protection for traditional knowledge by the recognition of rights of traditional knowledge holders, as well as provide for the prevention or invalidation of intellectual property rights which have been acquired without disclosure of origin, without prior informed consent and without fair and equitable benefit sharing. There are several international best practice examples of how to legislate and implement the provisions of the CBD, so as to adequately regulate access and benefit sharing in respect of genetic resources and traditional knowledge. Some of these international examples and their relevance are explored in Part III.

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PART III: BIODIVERSITY ACCESS AND BENEFIT SHARING BEST PRACTICES

By classification there are twelve countries of the world which have been identified as ‘mega biodiversity countries’. Together, these countries hold 60‐70% of the world’s recorded biodiversity. These countries are Australia, Brazil, China, Colombia, Ecuador, India, Indonesia, Madagascar, Malaysia, Mexico, Peru and Zaire. According to the Secretariat of the CBD, more than 50 countries have adopted or are in the process of adopting access and benefit sharing (ABS) policies and laws. However, there are different approaches to the regulation of access to genetic resources and benefit sharing. This is usually done in one of or in a combination of four ways:

1. enacting access provisions in general environmental or sustainable development laws;

2. enacting access provisions in nature conservation or biodiversity laws;

3. enacting access provisions into existing laws through amendment; or

4. enacting specific access and benefit sharing laws.134

This Part examines several different national biodiversity laws from different countries, with a view to assessing the most suitable alternatives for Jamaica’s national biodiversity policy and legislative framework. Two years after the CBD came into force in 1992, the Philippines became the first country to enact access and benefit‐sharing legislation. The framework for regulating biodiversity prospecting under the Philippines’ Executive Order 247 (EO247) contains four basic elements:

1. A system of mandatory research agreements between collectors and the national government with minimum terms for provision of information and samples, technology cooperation and benefit sharing.

2. Minimum standards for obtaining prior informed consent from local and indigenous communities where collection is carried out.

3. An inter‐agency committee to review applications and enforce compliance with research agreements and to coordinate further institutional, policy and technological development.

4. Minimum requirements for conformity with environmental protection laws and regulations.

The difficulties experienced in implementing EO247 suggest that to be effective, access and benefit‐sharing laws need to:

134 Kathryn Garforth and Jorge Cabrera, Sustainable Biodiversity Law: Global Access, Local Benefits, The Centre for International Sustainable Development Law, Canada, 2003, p. 2

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1. Clearly define the scope of the legislation with regard to the genetic resources to which it applies.

2. Ensure that distinctions between academic and commercial research are clear.

3. Provide adequate support for the negotiation of prior informed consent at the community level.

4. Provide for an efficient process without unreasonable delays. This includes the provision of adequate government resources to implement and enforce enabling regulations and to process applications expeditiously.135

INTERNATIONAL BEST PRACTICE EXAMPLES AND THE MAIN ISSUES This Section looks at access and benefit sharing international best practice examples from a number of different jurisdictions, analysed under the ten most pertinent issues facing policymakers. These are:

1. Should access laws and guidelines apply in situ and/or ex situ, to genetic resources, bioprospecting, and/or biodiscovery?

2. Who is an indigenous or local community?

3. What is the best way to regulate access to genetic resources and ensure fair and equitable sharing of benefits arising from use of same?

4. Should prior informed consent be required to access genetic resources, or only for access to traditional knowledge?

5. Should the right of prior informed consent be capable of restriction in the ‘national interest’?

6. What is the best procedure for having effective consultation with and obtaining the prior informed consent of indigenous and local communities?

7. What is the best way to regulate access to tradition al knowledge and ensure fair and equitable sharing of benefits arising from use of traditional knowledge?

8. What are the best ways to regulate differential access and benefit sharing laws for commercial and non‐commercial purposes?

9. What are the best ways to ensure fair and equitable benefit sharing with indigenous and local communities?

10. How should the Patent Act be amended to give best effect to the CBD obligations regarding access and benefit sharing?

The jurisdictions discussed below were selected on the basis of:

the particular circumstances existing in that jurisdiction which are similar to Jamaica,

135 David Greer and Brian Harvey, Blue Genes: Sharing and Conserving the World's Aquatic Biodiversity, Earthscan/IDRC, 2004, http://www.idrc.ca/en/ev-64749-201-1-DO_TOPIC.html

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the detailed nature of legislative and procedural protection and regulation offered by those laws, and

the currency and quality of their biodiversity laws.

This Section therefore looks in detail at two main laws from Australia (one of the mega biodiversity countries) – the Queensland Biodiscovery Act 2004 and the Northern Territory of Australia’s Biological Resources Act 2006, both of which are recently enacted and which offer useful examples of carefully analysed and implemented biodiversity regimes. This Section also utilises comparative analysis of laws from other jurisdictions under each of the issues to show the different approaches that have been taken by different national regimes, including Brazil, Colombia, Costa Rica, India, Philippines, Paraguay, Peru and South Africa, many of which are mega biodiversity countries (Brazil, Colombia, India, Peru) and all of which have indigenous and traditional communities. Regional laws from the Organization for African Unity (OAU) now African Union comprising 53 African countries, the Andean Community (Bolivia, Colombia, Ecuador, Peru, Venezuela) and the Association of South East Asian Nations (ASEAN) Community are also considered, as possibly being capable of informing the Jamaican legislative approach in the context of the proposed regional Caribbean Community (CARICOM) model law for the protection of traditional knowledge. The Section concludes with some recommendations that can be made for Jamaica, learning from the best practice examples presented. 1. Scope of Protection This section assesses whether access laws and guidelines should apply in situ and/or ex situ, to genetic resources, bioprospecting, and/or biodiscovery. Andean Community Applies to in situ and ex situ genetic resources, defined as all material that contains genetic information of value or of real or potential use. ASEAN Defines ‘bioprospecting’ as the search for wild species with genes that produce better crops and medicines; or the exploration of biodiversity for commercially valuable genetic and biological resources. Australia Queensland Biodiscovery Act 2004 defines ‘biological diversity’ as ‘the natural diversity of native biological resources, together with the environmental conditions necessary for their survival, and includes:

(a) regional diversity, that is, the diversity of the landforms, soils and water of a region, and the functional relationships that affect environmental conditions within ecosystems; and

(b) ecosystem diversity, that is, the diversity of the different types of communities formed by living organisms and the relations between them; and

(c) species diversity, that is, the diversity of species; and

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(d) genetic diversity, that is, the diversity of genes within each species.’

In the Act, ‘biodiscovery’ means:

(a) biodiscovery research; or

(b) the commercialisation of native biological material or a product of biodiscovery research.

‘Biodiscovery research’ means the analysis of molecular, biochemical or genetic information about native biological material for the purpose of commercialising the material. ‘Native biological material’ means:

(a) A native biological resource; or

(b) A substance sourced, whether naturally or artificially, from a native biological resource; or

(c) Soil containing a native biological resource.

‘Native biological resource’ means:

(a) a non‐human living organism or virus indigenous to Australia and sourced from State land or Queensland waters; or

(b) a living or non‐living sample of the organism or virus.

Northern Territory of Australia’s Biological Resources Act 2006 ‘Biodiversity’ means the natural diversity of biological resources, together with the environmental conditions necessary for their survival, and includes the diversity of:

(a) the landforms, soils and water of a region, and the functional relationships that affect environmental conditions within ecosystems (called ‘regional diversity’); and

(b) the different types of communities formed by living organisms and the relations between them (called ‘ecosystem diversity’); and

(c) species (called ‘species diversity’); and

(d) genes within each species (called ‘genetic diversity’).

‘biodiscovery’ means research on samples of biological resources, or extracts from those samples, to discover and exploit genetic or biochemical resources of actual or potential value for humanity; ‘biological resources’ includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity; ‘Bioprospecting’ is defined as the taking of samples of biological resources, existing in situ or maintained in an ex situ collection of such resources, for research in relation to any genetic resources, or biochemical compounds, comprising or contained in the biological resources. The Act however specifies that the following activities do not constitute bioprospecting:

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(a) taking biological resources from an area of land or water by indigenous people who have traditionally used the area of land or water in accordance with aboriginal tradition for hunting, food gathering (other than for sale) and for ceremonial and religious purposes;

(b) dealing with any biological material of human origin;

(c) taking samples of biological resources that have been cultivated or tended for a purpose other than biodiscovery and where the samples are not to be used for biodiscovery;

(d) taking samples of biological resources specified in a declaration under section 10;

(e) taking samples of biological resources that are available to the public on an unrestricted basis (whether on commercial or non‐commercial terms);

(f) taking samples of a biological resource that is:

i. a genetically modified organism for the purposes of section 10 of the Gene Technology Act 2000 (Commonwealth of Australia); or

ii. a plant variety for which a Plant Breeder’s Right has been granted under section 44 of the Plant Breeder’s Rights Act 1994 (Commonwealth of Australia);

(g) taking aquatic life, within the meaning of the Fisheries Act, that:

i. has been caught, taken or harvested under a licence or permit granted under that Act (other than a permit granted under section 17 of the Fisheries Act for bioprospecting); or

ii. comprises a managed fishery or part of a managed fishery within the meaning of that Act.

The Act also clarifies that the following activities, if undertaken for a purpose other than biodiscovery, also do not constitute bioprospecting:

(a) fishing for commerce or recreation, game or charter fishing or collecting broodstock for aquaculture;

(b) harvesting wildflowers;

(c) taking wild animals or plants for food;

(d) collecting peat or firewood;

(e) taking essential oils from wild plants;

(f) collecting plant reproductive material for propagation;

(g) commercial forestry.

Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 2) ‘Access to biological resources’ means the taking of biological resources of native species for research and development on any genetic resources, or biochemical compounds,

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comprising or contained in the biological resources, other than the following ‐ (a) the taking of biological resources by indigenous persons: (i) for a purpose other than for research and development; or (ii) in the exercise of their native title rights and interests; (b) access to human remains; (c) the taking of biological resources that have been cultivated or tended for a purpose other than for research and development; (d) the taking of public resources for a purpose other than for research and development; (e) the taking of a biological resource that is: (i) a genetically modified organism; or (ii) a plant variety for which a Plant Breeder’s Right has been granted. Brazil Brazil’s Provisional Measure No. 2.186‐16 applies to components of ‘genetic heritage’, defined as ‘information of genetic origin contained in samples of all or part of plant, fungal, microbial or animal specimens, in the form of molecules and substances deriving from the metabolism of such living beings and extracts obtained from such organisms, live or dead, encountered in situ, including domestic situations, or kept in ex situ collections after in situ collection within the national territory, on the continental shelf or in the exclusive economic zone.’ Costa Rica Costa Rica’s Biodiversity Law applies to samples of components of biodiversity, whether in situ or ex situ. Biodiversity includes the variability of living organisms of any source, whether found in terrestrial, air or marine or aquatic ecosystems or in other ecological complexes. Access laws apply only to genetic components (containing functional units of heredity) and biochemicals. OAU The OAU’s Model Law applies to biological resources and knowledge or technologies of local communities in any part of the country. Biological resources are defined to include genetic resources, organisms or parts thereof, populations, or any other component of ecosystems. Philippines Applies to biological and genetic resources. FINDINGS

1. Most laws do not distinguish between biological and genetic resources, or they define biological resources to include genetic resources.

2. Some laws define bioprospecting and biodiscovery, while some do not.

2. Indigenous or local communities This section addresses the difficulties in the identification of communities of interest and how their proper status can be recognised and established in practice, laws and regulations. Brazil Brazil’s Provisional Measure defines ‘local community’ as a ‘human group... distinguished by its cultural conditions, that traditionally organizes itself throughout successive generations

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and through its own customs, and preserves its social and economic institutions’. ‘Indigenous’ is not defined. OAU The OAU model law defines ‘local community’ as ‘a human population in a distinct geographical area, with ownership over its biological resources, innovations, practices, knowledge and technologies governed partially or completely by its own customs, traditions or laws’. Peru Peru’s law ‘Recognition of the Rights of Indigenous Peoples in their Collective Knowledge’, defines ‘indigenous peoples’ as ‘aboriginal peoples holding rights that existed prior to the formation of the Peruvian State, maintaining a culture of their own, occupying a specific territorial area and recognizing themselves as such.’ However, the law goes on to explain that the term ‘indigenous’ shall encompass and may be used as a synonym of ‘aboriginal’, ‘traditional’, ‘ethnic’, ‘ancestral’, ‘native’ or other such word form. Philippines Philippine law describes ‘local community’ as ‘the basic political unit where biological and genetic resources are located’. The Draft Bill on Community Intellectual Rights Protection defines ‘community’ as ‘any group of people living in a geographically defined area with a common history and definitive patterns of relationship.’ The Community Intellectual Rights Protection Bill also defines ‘indigenous peoples or indigenous groups or cultural communities' as ‘a group of people sharing common bonds of language, customs, traditions and other distinctive traits, and who have, since time immemorial, occupied, possessed, and utilised a territory except when such possession is either prevented or interrupted by war, force majeure, displacement or force, deceit or stealth, or other usurpation.’ The Indigenous Peoples Rights Act defines ‘Indigenous Cultural Communities/Indigenous Peoples’ as ‘a group of people or homogenous societies identified by self‐ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non‐indigenous religions and cultures, became historically differentiated from the majority of Filipinos.’ South Africa The South African Biodiversity Act defines ‘local community’ as ‘any community of people living or having rights or interests in a distinct geographical area.’

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FINDINGS

Different jurisdictions use different definitions of indigenous and local communities according to national or regional circumstances.

3. Regulating access to genetic resources and sharing of benefits This section looks at the ways in which the access to genetic resources can best be managed. In doing so the mechanics of fair and equitable benefits sharing also must be addressed. Australia Northern Territory of Australia’s Biological Resources Act 2006 – the procedural regulatory scheme under the Act is that a person who wishes to engage in bioprospecting in the Territory must apply to the appropriate permit issuing authority for a permit. The regulatory authority must consider whether the proposed activity comprises bioprospecting. The Authority may ask for further information regarding the biodiscovery activities proposed, as well as a proposed timetable for such activities. If the resource access provider is the Northern Territory (the State), the CEO is bound to enter into a fair benefit sharing agreement with the applicant before the permit is allowed. If the resource access provider is not the State, the resource access provider and the applicant must confirm to the Authority that a benefit‐sharing agreement has been negotiated and is in place. A benefit‐sharing agreement is not valid unless the resource access provider has given prior informed consent to the terms of the agreement. In considering whether a resource access provider has given informed consent, the Authority must consider the following matters:

(a) whether the resource access provider had adequate knowledge of the Act and was able to engage in reasonable negotiations with the applicant for the permit about the benefit‐sharing agreement;

(b) whether the resource access provider was given adequate time:

i. to consult with relevant people, including the traditional owners for the land; and

ii. to negotiate the benefit‐sharing agreement;

(c) whether the resource access provider has received independent legal advice about the application and requirements of the Act.

All benefit‐sharing agreements must provide for reasonable benefit‐sharing arrangements, including protection for, recognition of and valuing of any indigenous people’s knowledge to be used, and must include the following:

(a) full details of the parties to the agreement;

(b) if the resource access provider is the person granting physical access to the area – details regarding the time and frequency of entry to the area that has been agreed to be granted;

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(c) the resources (including the name of the species, or lowest level of taxon, to which the resources belong, if known) to which access has been agreed to be granted;

(d) the quantity of the resources that has been agreed can be removed from the area;

(e) the purpose of the access, as disclosed to the resource access provider;

(f) a statement setting out the proposed means of labelling samples;

(g) the agreed disposition of ownership in the samples, including details of any proposed transmission of samples to third parties;

(h) a statement regarding any use of indigenous people’s knowledge, including details of the source of the knowledge;

(i) a statement regarding benefits to be provided or any agreed commitments given in return for the use of the indigenous people’s knowledge;

(j) the details of any proposals of the applicant to benefit biodiversity conservation in the area if access is granted;

(k) details of the benefits that the resource access provider will receive in return for the taking of the resources.

The Act requires the Authority to maintain a register of information about:

(a) permits, relating to biodiscovery, issued (or declined to be issued) by permit issuing authorities;

(b) samples taken under those permits and details of samples being lodged or transferred to other parties;

(c) benefit‐sharing agreements;

(d) certificates of provenance (an original document issued by the Territory stating the specified biological resources, or extracts from a named organism that were taken and that the sample was taken

under a permit scheme intended to minimise negative impacts on biodiversity;

with the informed consent of resource access providers; and that a benefit‐sharing agreement had been negotiated and was in place).

In regard to benefit sharing agreements, the Authority must record in the register:

(a) full details of the parties to the agreement;

(b) details of the time and frequency of entry to the area that has been agreed to be granted;

(c) the resources (including the name of the species, or lowest level of taxon, to which the resources belong, if known) of which samples have been agreed may be taken;

(d) the quantity of the resources that has been agreed can be removed from the area;

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(e) the purpose of the taking of the resources, as disclosed to the resource access provider;

(f) the agreed disposition of ownership in the samples, including details of any proposed transmission of samples to third parties.

After the bioprospector has taken the biological resource samples, the bioprospector must file a report with the permit issuing authority stating:

(a) the date each sample was taken;

(b) the location from which the sample was taken (by GPS coordinates using WGS84 datum);

(c) the species of each sample; and

(d) the quantity of the sample taken.

If it is a condition of the permit, the bioprospector must also lodge samples of the biological resources taken with the Territory Herbarium or Museum of Arts and Sciences, as appropriate and advise the permit issuing authority of the date on which the samples were so lodged. The Act makes it expressly clear that no exclusive rights, or access, to a biological resource arises merely from the issue of a permit by a permit issuing authority, or the entering into a benefit‐sharing agreement by a resource access provider. A term of a benefit‐sharing agreement that purports to grant exclusive rights or access is void. Queensland Biodiscovery Act 2004 – applicants may apply for a collection authority (permit) which authorises its holder to take minimal quantities of stated native biological material from, on or in, State land or Queensland waters, and keep the material, for biodiscovery. The application must state:

(a) the applicant’s name and, if the applicant is not an individual, the applicant’s ACN or ABN;

(b) the applicant’s place of business;

(c) an appropriate description of the State land or Queensland waters to which the application relates;

(d) a description of the type of material, proposed to be taken under the collection authority, of sufficient detail to enable the material to be identified for deciding the application;

(e) the material’s scientific classification, to the extent known by the applicant; and

(f) the period for which the collection authority is sought.

The application must also be accompanied by a copy of the applicant’s proposed or approved biodiscovery plan. The collection authority will only be issued for a maximum validity of three years. However, the authority lapses after one year if a benefit sharing agreement concerning the native biological material the subject of the authority is not entered into within the first year. A

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collection authority holder must not take native biological material under the authority unless a benefit sharing agreement concerning the material is in force. An application is deemed to be refused if no decision on it has been communicated to the applicant within 40 business days of the lodging of the application or further documentation required. This may be useful to provide some certainty to applicants and prescribe a time limit within which decisions are to be made ideally by the relevant agency. The holder of a collection authority must, as soon as practicable after taking native biological material for biodiscovery under the authority, give a sample of the material to the following:

(a) for animal material ‐ the Queensland Museum;

(b) for plant material or fungi ‐ the Queensland Herbarium;

(c) for another organism ‐ an entity stated in the benefit sharing agreement concerning the material.

However, the receiving entity must not use, for biodiscovery, a sample of material given to it by the holder of a collection authority, unless the collection authority holder consents. This latter provision seems strange in light of the objective to foster research for the benefit of the host state or community. Benefit sharing agreements under the Act must state:

(a) the date the agreement is entered into;

(b) the agreement’s term;

(c) the benefits of biodiscovery to be provided by the biodiscovery entity to the State;

(d) when the benefits are to be provided;

(e) if the benefits include the payment of amounts of money to the State—the amounts, or a way of working out the amounts;

(f) if native biological material, the subject of the agreement, is to be taken under a collection authority—the number, or other identification, of each authority under which the material is to be taken;

(g) what matters are reportable matters for the agreement;

(h) the biodiscovery entity’s place of business.

Additionally, the only commercialisation activities the biodiscovery entity, with whom the agreement is made, may carry out are the activities detailed in the entity’s approved biodiscovery plan. It is also a condition of the agreement that the entity must not allow someone else to use any of the native biological material the subject of the agreement for biodiscovery, unless the other person is acting for the entity; is a party to a benefit sharing agreement concerning the material, or is merely classifying the material or verifying the research, or for non‐commercial educational or training purposes. A biodiscovery entity’s biodiscovery plan must include details of:

1. the commercialisation activities the entity proposes carrying out;

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2. a proposed timetable for carrying out the activities;

3. the parts of any of the activities the entity proposes carrying out outside the State;

4. the types of any of the activities the entity proposes engaging someone else to carry out for the entity;

5. the benefits of biodiscovery the entity reasonably considers it will provide to the State under a benefit sharing agreement;

6. if the entity is not prohibited from disclosing the details under another law or contract, any grants or other financial assistance given, or to be given, to the entity for the activities.

FINDINGS All the national laws enacted to comply with the CBD provide for a licence and/or permit system whereby persons wishing to gain access to genetic resources and/or traditional knowledge have to fulfil stated conditions relating to

(a) full disclosure of interest, personal information and purpose;

(b) prior informed consent; and

(c) benefit sharing.

4. Prior informed consent for access This section examines the matter of prior informed consent and the requirement for this as a prerequisite to allowing access to genetic resources and/or traditional knowledge. Brazil Brazil law expressly makes the requirement to obtain indigenous community consent applicable only to access to traditional knowledge and not genetic resources. OAU The OAU model law recognizes the rights of communities over their biological resources, innovations, practices, knowledge and technologies and the right to benefit from their use. Peru Peru also explicitly makes indigenous people’s rights and the requirement to obtain indigenous community consent, applicable only to access to traditional knowledge and not genetic resources. Philippines Philippines law requires consent for access to genetic resources without limiting the right of communities in respect of their associated traditional knowledge.

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FINDINGS Different countries use different approaches to regulate access to genetic resources and to regulate access to traditional knowledge. Essentially it depends on the relationship of their community involved to the resources, i.e. is it one of ownership or custodianship? The CBD stipulates prior informed consent is necessary for access to traditional knowledge of indigenous and local communities. 5. Restrictions to prior informed consent This section looks at the ways and conditions under which prior informed consent may be restricted or refused in the ‘National Interest’. Brazil In Brazil, access may be permitted without consent ‘in instances of relevant public interest’. Costa Rica The Costa Rican law recognizes the right of communities to oppose any access to their resources or associated knowledge, whether for cultural, spiritual, social, economic or other motives. In Costa Rica, indigenous reserves and territories are community property. They are inalienable; ownership and/or possession cannot be transferred or limited. This also applies to in situ collections of agricultural and animal collections held within indigenous communities. OAU Under the OAU model law, communities can refuse access if it will be ‘detrimental to the integrity of their natural or cultural heritage’. They can also withdraw consent or place restrictions on activities relating to access if they are likely to be detrimental to their socio‐economic life or their natural and cultural heritage. Paraguay In Paraguay, indigenous lands are not divisible or transferable. Peru In Peru, the right of indigenous and local communities may be limited to a right to use resources located on their lands for subsistence purposes. FINDINGS Some laws restrict the right of communities to withhold consent. However this approach has been said to not comply with the CBD.

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6. Effective community consultations and prior informed consent This section examines the options for enabling effective and efficient mechanisms for both the required local community consultations as well as their participation in the provision of prior informed consent. International best practices requires that the customary laws of indigenous and local communities be respected and complied with in relation to having effective consultation with and obtaining the prior informed consent of indigenous and local communities. Andean Community Parties to access agreements are the State and the applicant. Applicants may make ancillary contracts with the owner, possessor or manager of the land where the biological resource containing the genetic resource is located. No specific mention of communities. Brazil The state recognizes the right of the indigenous communities and of the local communities to decide on the use of their traditional knowledge related to the genetic heritage of the country. Costa Rica Prior informed consent for access to genetic components and biochemicals must be obtained from representatives of the place where access will occur, whether regional councils of Conservation Areas, owners of farms, or indigenous authorities (s 63). Local communities and indigenous peoples can oppose access to their resources and associated knowledge for cultural, spiritual, social, economic or other reasons (s 66). OAU Access to biological resources, knowledge and/or technologies of local communities is subject to the written prior informed consent of the Competent National Authority as well as that of concerned local communities, ensuring that women are also involved in decision‐making. An access permit is granted through a written agreement between the Competent National Authority, concerned local communities and the applicant or collector. Peru Collectors wishing to obtain access to collective knowledge for scientific, commercial or industrial purposes must request the prior informed consent of one or more indigenous peoples possessing the collective knowledge. Philippines Prospecting within ancestral lands and domains of indigenous cultural communities is allowed only with their prior informed consent, obtained in accordance with customary laws. Prior informed consent must also be obtained from concerned local communities. Research proposals must be submitted to the recognized head of any affected local or indigenous cultural community. Under the Philippine Regulations, a collector must obtain consent from the mayor of a local community or head of an indigenous people, hold a community assembly, fully describe the research proposal in a language or dialect understandable to local people, and describe proposed benefits.

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FINDINGS Some countries have a national authority which serves as a regulatory body both on behalf of the State as well as on behalf of the communities. Other countries empower the communities to organise themselves to be able to participate effectively and to be able to give or refuse prior informed consent. 7. Regulating access to traditional knowledge and ensuring sharing of benefits arising from use This section looks at the optimal ways of regulating access to traditional knowledge and mechanisms which will ensure fair and equitable benefit sharing arising from the use of biodiversity‐related traditional knowledge. Brazil The Brazilian law notes that protection of traditional knowledge ‘shall not affect, damage or limit rights related to intellectual property’ and requires that access and benefit‐sharing contracts include provision for intellectual property rights. Costa Rica Costa Rica’s biodiversity law recognizes and protects sui generis community intellectual rights over knowledge, practices and innovations related to the use of components of biodiversity and associated knowledge. It provides for the protection of intellectual property rights with several exceptions, including the prohibition of intellectual property rights for ‘inventions which, to be commercially exploited through a monopoly, can affect farming or fishing processes or products which are considered basic for the food and health of the inhabitants of the country’. The law provides for a participatory process with small farmer and indigenous communities to determine the nature and scope of sui generis rights. OAU The OAU model law provides that the Community Intellectual Property Rights of local communities are inalienable. Community Intellectual Property Rights are defined as those rights held by local communities over their biological resources or parts or derivatives thereof, and over their practices, innovations, knowledge and technologies. The state recognizes and protects community rights as enshrined under the norms, practices and customary law, whether written or not. The model law provides that collectors must agree not to apply for intellectual property protection over a biological resource or its derivatives without community consent. It also prohibits patents on life forms and biological processes. Philippines The Philippines, in addition to its bioprospecting law, has adopted separate legislation for the protection of Community Intellectual Property Rights (see below). FINDINGS Recognition of rights over genetic resources can only be settled through acknowledgement of full rights to manage and control local ecosystems and the biological and genetic resources within them. There are different approaches ‐ the Costa Rican and OAU

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initiatives are the most progressive among access and benefit‐sharing laws to date, as they both prohibit the acquisition of intellectual property rights in specified circumstances. The Philippines has drafted a stand alone community rights law. 8. Differentiation between commercial and non‐commercial purposes, and foreigners and nationals Australia Under the Queensland Biodiscovery Act 2004 (Australia) ‘commercialisation’, of native biological material, means using the material in any way for gain. The term does not include using the material to obtain financial assistance from a State or the Commonwealth, including, for example, a government grant. According to the Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 2), an applicant for a permit for access to biological resources for non‐commercial purposes in a Commonwealth (of Australia) area to which this Part applies must nevertheless obtain the written permission of each access provider for the resources to (a) enter the Commonwealth area; (b) take samples from the biological resources of the area; and (c) remove samples from the area. The applicant must also provide a copy of a statutory declaration given to each access provider declaring that the applicant (a) does not intend to use the biological resources to which the application relates for commercial purposes; (b) undertakes to give a written report on the results of any research on the biological resources to each access provider; (c) undertakes to offer, on behalf of each access provider, a taxonomic duplicate of each sample taken to an Australian public institution that is a repository of taxonomic specimens of the same order or genus as those collected for permanent loan; (d) undertakes not to give a sample to any person, other than an institution referred to in paragraph (c), without permission of each access provider; and (e) undertakes not to carry out, or allow others to carry out, research or development for commercial purposes on any genetic resources or biochemical compounds comprising or contained in the biological resources unless a benefit‐sharing agreement has been entered into with each access provider. The requirements under the Regulations differ depending on whether the access sought is for commercial or non‐commercial purposes. The requirements for an application for access to biological resources for commercial purposes include that (i) the applicant has entered into a benefit‐sharing agreement for the biological resources with each access provider; (ii) the applicant has given to the Minister a copy of each benefit‐sharing agreement; (iii) if the resources are in an area that is indigenous people’s land and an access provider for the resources is the owner of that land, the Minister is satisfied that the owner has given informed consent to the benefit‐sharing agreement. The requirements for an application for access to biological resources for non‐commercial purposes include that (i) the applicant has permission from each access provider for the area; (ii) the applicant has given to the Minister a copy of the statutory declaration required above; (c) the Minister believes, on reasonable grounds, that some of the benefits of access to the biological resources will, if practicable, be used for biodiversity conservation in the

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area from where the resources were taken; (d) for proposed access in a Commonwealth reserve, access would be consistent with any management plan in operation for the reserve; (e) for proposed access in specified national parks, access would be consistent with any lease of indigenous people’s land in the park; and (f) the proposed access will, taking into account the precautionary principle, be ecologically sustainable and consistent with the conservation of Australia’s biological diversity. Brazil Brazilian law requires an access and benefit‐sharing contract only when there is a possibility of commercial use. OAU The OAU model law provides that applications must state the relationship of the applicant with industry. Permit fees may differ depending on whether the research is for commercial or academic purposes. Philippines The Philippine law provides for separate commercial and academic research agreements, the latter being restricted to institutions within the country. Academic research agreements can be broader and more general in character, with each agreement covering all scientists and researchers at an institution. If it later becomes evident that academic research resulting from collections has commercial prospects, a scientist must reapply for a commercial agreement. Under either type of agreement, collectors must obtain the prior informed consent of communities where collections take place. However, under academic agreements, collecting institutions can develop their own internal guidelines for obtaining prior informed consent. In addition to distinguishing between academic and commercial purposes, some laws also differentiate between nationals and foreigners. Under Philippine law, foreign applicants must apply for collection in partnership with a Philippine national research institute or university. Their research applications must include a proposal stating the purpose, source of funds, duration and a list of biological and genetic materials and amounts to be taken. This is similar to the Indian law (below) which states that no non‐Indian person can obtain any biological resource or associated knowledge without approval of the National Biodiversity Authority. FINDINGS Most ABS laws distinguish between access for commercial and non‐commercial purposes, while only a few distinguish between nationals and foreigners. The rationale is that more keen regulation ought to be focused on commercial access for the reason that benefit‐sharing may take on heightened importance for commercial access. Likewise, regarding nationals vs. foreigners, the rationale is that nationals should be allowed to maintain certain traditional and customary uses, for private or academic purposes (see exemptions under Indian Biodiversity Act below).

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9. Fair and equitable benefit sharing with communities Defining the nature, amount and method of delivery of benefits to communities will likely be the greatest challenge for policy makers and those involved in access negotiations. Non‐monetary benefits, such as technology transfer, training and employment, can ultimately be not only far more useful to communities but also more effective in facilitating sustainable, conservation‐based economies. Andean Community Applications for access and access contracts shall include conditions for strengthening and development of the capacities of the native, Afro‐American, and local communities with relation to the associated intangible components (know how, innovations, practices), the genetic resources, and their by‐products. Access contracts shall stipulate fair and equitable distribution of profits from the use of genetic resources or by‐products with an intangible component. Australia Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 2) Benefit sharing agreements must include inter alia (i) a statement regarding any use of indigenous people’s knowledge, including details of the source of the knowledge, such as, for example, whether the knowledge was obtained from scientific or other public documents, from the access provider or from another group of indigenous persons; (ii) a statement regarding benefits to be provided or any agreed commitments given in return for the use of the indigenous people’s knowledge; (iii) if any indigenous people’s knowledge of the access provider, or other group of indigenous persons, is to be used, a copy of the agreement regarding use of the knowledge (if there is a written document), or the terms of any oral agreement, regarding the use of the knowledge; (iv) the details of any proposals of the applicant to benefit biodiversity conservation in the area if access is granted; (v) details of the benefits that the access provider will receive for having granted access. Brazil Indigenous and local communities that create, develop, hold or conserve traditional knowledge associated with genetic heritage have the right to receive benefits from the economic use by third parties of associated traditional knowledge to which they hold rights. Costa Rica Costa Rica’s biodiversity law promotes community participation in the conservation and sustainable use of biological diversity through technical assistance and special incentives, especially in areas with rare, endemic or endangered species. To this end, it requires the Ministry of Environment and Energy to give priority to projects for community management of biodiversity. Requirements for access include technology transfer and equitable distribution of benefits, as agreed in permits, agreements and concessions. India National Biodiversity Authority approval of access depends on securing equitable sharing of benefits arising from the use of biological resources, their by‐products, innovations and

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practices associated with their use and applications and knowledge related thereto. Required benefits may include: joint ownership of intellectual property rights with benefit claimers; technology transfer; location of production, research and development units in such areas which will facilitate better living standards to the benefit claimers; association of benefit claimers and local people in biological resources; venture capital funds to help benefit claimers; and payment of monetary and non‐monetary benefits to benefit claimers. ‘Benefit claimers’ includes conservers of biological resources, their by‐products, creators and holders of knowledge and information to use biological resources, innovations, and practices associated with such use and application. If approving collectors’ applications of intellectual property rights, the National Biodiversity Authority may impose a benefit‐sharing fee or royalty or both or impose conditions including the sharing of financial benefits arising from the commercial use of such rights. OAU Under the agreement with the Competent National Authority and communities, the collector undertakes to: provide for the sharing of benefits; inform concerned communities of all research and development findings; contribute economically to community efforts to regenerate and conserve the biological resource collected and to maintain the innovation, practice, knowledge or technology to which access is sought. Communities are entitled to a share of earnings derived when any biological resource and/or knowledge generates a product used in a production process. The state must ensure that at least 50% of benefits so derived are channelled to concerned local communities. Peru Peru, recognizing that collective knowledge may be shared among a variety of indigenous groups, takes the approach of providing for the transfer of monetary benefits to a general fund for the development of indigenous peoples. Whoever gains access to the collective knowledge of an indigenous people must direct at least 0.5% of the value of sales resulting from the marketing of products developed from such knowledge to the Fund for the Development of Indigenous Peoples. The Fund supports projects and activities approved by an Administrator Committee. Philippines Commercial agreements between the applicant and government must include provision for payment of royalties to the national government, local or indigenous cultural community. FINDINGS

1. Some laws mention benefits in general terms, others, such as Philippines Executive Order 247, specifically mention benefits such as royalties. The Philippines law has however been sharply criticized by civil society organizations for providing only for royalties and for not specifying how they will be divided between communities and government. Thus the OAU regime stipulates 50%.

2. The effectiveness of access and benefit‐sharing legislation depends to a large extent on the will and ability of governments to work with communities and

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collectors. It is accepted internationally that both monetary and non‐monetary benefits are important for developing countries and communities. Empowering communities to receive and apply benefits to their own communities is the best way to achieve effective benefit‐sharing. However it has also been realised in practice that governments should assist communities with the logistics and enforcement of benefit‐sharing agreements.

The establishment of a fund to assist conservation and community development, as is done in Peru, seems to have wide support from non‐governmental and community based organizations in Jamaica. However, it is felt that such a fund should not be administered by government but by non‐governmental and community based organizations in Jamaica.136 10. Patent Act amendments for CBD obligations ‘Requirements for the disclosure of origin and legal provenance of genetic resources and traditional knowledge in intellectual property applications, especially patents, offer the most transparent and practical solution to generate positive synergies and mutual support between the access and benefit sharing (and protection of traditional knowledge) regime being negotiated under the CBD and the international intellectual property a system and the TRIPS Agreement in particular.’137 This area is analysed by reference to the South Africa Patent Amendment Act. South Africa’s Patents Amendment Act In 2005 the Patent Act in South Africa was amended to conform to the Biodiversity Act 2004. South Africa’s Patents Amendment Act No. 20 of 2005 requires that every applicant who lodges an application for a patent accompanied by a complete specification, must state whether or not the claimed invention is:

1. based on or derived from an indigenous biological resource or an indigenous genetic resource; or

2. based on or derived from an indigenous biological resource or an indigenous genetic resource and also based on or derived from traditional knowledge or use; and

3. if the invention is based on or derived from traditional knowledge or use, whether it is co‐owned by the owners of the traditional knowledge or use.

136 Wendy A. Lee, Perceived Costs And Benefits Of Bio-Prospecting In Jamaica: Results Of A Stakeholder Survey For The International Cooperative Biodiversity Group

137 Graham Dutfield, Disclosure of Origin: time for a reality check?, p. 43-46 at 45, in Disclosure Requirements: Ensuring mutual supportiveness between the WTO TRIPS Agreement and the CBD, International Union for Conservation of Nature and Natural Resources, International Centre for Trade and Sustainable Development, Center for International Environmental Law, Institut du developpement durable et des relations inteernationales and Quakers United Nations Office, 2005.

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‘Indigenous biological or genetic resource’ means a South African biological or genetic resource. Similarly, ‘traditional knowledge or use’ means the knowledge or way in which an indigenous community has used the indigenous biological or genetic resource. The amendments to the Patents Act came into force on 14 December 2007 by proclamation and with the publication of Regulations for the Patents Amendment Act. As a result, every applicant for a patent (with the exception of provisional patent applications) in South Africa on or after 14 December 2007 is required to lodge a Declaration or Statement of origin of the biological resource or associated knowledge. It is therefore not possible to obtain a patent in South Africa if the required Statement is not lodged at the Patent Office. If the Declaration contains a false statement or representation which is material and which the applicant knew, or ought reasonably to have known, to be false at the time when the statement or representation was made, the patent can be revoked. The Declaration is required to be filed within six months (extensions can be obtained) of filing the patent application. The genetic resources to which the amendments to the Patents Act relate are broader than the indigenous biological resources defined in the South African Biodiversity Act. The amendments to the Patents Act do not have the exceptions and exemptions that are included in the Biodiversity Act. If an applicant acknowledges that the invention is based on, or derived from, an indigenous biological or genetic resource or traditional knowledge, the applicant must submit proof of their title or authority to make use of the resource or traditional knowledge by lodging one of the following in accordance with the Biodiversity Act:

a copy of a valid bioprospecting permit;

proof that prior consent has been obtained;

proof of a material transfer agreement;

proof of a benefit‐sharing agreement;

proof of co‐ownership with a South African of the invention for which protection is claimed.

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LAWS FROM OTHER JURISDICTIONS INDIA’S BIODIVERSITY ACT 2002 Sharing common English colonial history with Jamaica and having a strong commitment to Biodiversity protection, India represents an excellent best practice reference. Prior to the passage of its Biodiversity Act in 2002, India like Jamaica had separate, piecemeal laws dealing with different aspects of biodiversity. These included the Forest Act 1927, the Wildlife (Protection) Act 1972 and the Forest (Conservation) Act 1980. None of those Acts addressed wholesomely issues of access to biological resources and benefit sharing in respect of biological resources. Nor did they deal with the protection of traditional knowledge and equitable sharing of benefits arising out of the use of such knowledge. Jamaica today faces a similar dilemma. The purpose of the Indian Biodiversity Act is to realize equitable sharing of benefits arising out of the use of biological resources and associated knowledge. The legislation primarily addresses access to biological resources by foreign individuals, institutions or companies, to ensure equitable sharing of benefits arising out of the use of these resources and knowledge to the country and the people. Structures The Act establishes a three tiered structure at the national, state and local levels. This is achieved by the establishment of:

1. A National Biodiversity Authority (NBA) ‐ responsible for dealing with requests for access by foreign individuals, institutions or companies, and all matters relating to transfer of results of research to any foreigner.

2. State Biodiversity Boards (SBBs) ‐ responsible for regulating access by Indians for commercial purposes. The Indian industry is required to inform the relevant SBB about the use of biological resources. The SBBs have the power to restrict any such activity, which violates the objectives of conservation, sustainable use and equitable sharing of benefits; and

3. Biodiversity Management Committees (BMCs) – to be organised by institutions of local self government to manage conservation, sustainable use, and documentation of biodiversity and biodiversity‐related traditional knowledge.

The NBA and SBBs are required to consult the concerned BMCs on matters related to use of biological resources and associated knowledge within their jurisdiction. All matters relating to requests by foreign individuals, companies or institutions and all matters relating to transfer of results of research to any foreigner, are to be dealt with by the NBA. All matters relating to access by Indians for commercial purposes are the responsibility of the concerned SBBs. ABS Policy There is no requirement under the legislation for seeking permission of the National Biodiversity Authority for carrying out research, if it is carried out in India by Indians, as well as under collaborative research projects that have been drawn within the overall policy guidelines formulated by the Central Government. The only situations that would require permission of the NBA are:

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1. when the results of any research which has made use of the country’s biodiversity is sought to be commercialised,

2. when the results of research are shared with a foreigner or foreign institution, and

3. when a foreign institution/individual wants access to the country’s biodiversity for undertaking research.

Access to biological resources and associated knowledge is subject to terms and conditions to ensure equitable sharing of benefits. These benefits could include monetary gains, grant of joint ownership of intellectual property rights, transfer of technology, association of Indian Scientists in R&D, setting up of venture capital fund etc. In cases where specific individuals or group of individuals are identifiable, the monetary benefits are to be paid directly to them. Otherwise, the amount will be deposited in the National Biodiversity Fund. The Indian Biodiversity Act provides for the following exemptions:

a. Exemption to local people and community of the area for free access to use biological resources within India

b. Exemptions to growers and cultivators of biodiversity and to Vaids and Hakims (traditional Indian medicine practitioners) to use biological resources.

c. Exemption through notification of normally traded commodities from the purview of the Act

d. Exemption for collaborative research through government sponsored or government approved institutions subject to overall policy guidelines and approval of the Central Government

Value added products have been excluded from the definition of biological resources. This was specifically done so as not to affect the existing export trade by Indians of value added products. An exemption has also been provided for applicants seeking protection under the Plant Variety Protection Act, so as avoid overlap of procedural requirements, as the Plant Variety Protection Act also has a provision for benefit sharing. The Authority under the Plant Variety Protection Act is required to endorse a copy of the right granted under the Biodiversity Act. The Act also requires the NBA to establish establishes the People’s Biodiversity Register and the particulars it should contain and the format for electronic database. This is so that the people’s knowledge such as knowledge of uses that might find commercial application and the knowledge pertinent to prudent management of natural resources that might need to be guarded with respect to IPR, are to be registered by the locals. As per Rule 14, 17, 18 and 19 of the Biological Diversity Rules 2004, the NBA shall receive applications for Access, for Transfer of Bio‐resources and application for patents. These applications are to be scrutinized by a committee of experts prior to approval. After the approval, the applicants have to enter into an agreement with the NBA to ensure regulated access and equitable benefit‐sharing. The following Expert Committees have been established to prepare guidelines for notification:

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1. Expert Committee on Medicinal Plants;

2. Expert Committee on IPR;

3. Expert Committee on Traditional and Tribal Knowledge; and

4. Expert Committee on Normally‐traded Commodities.

SOUTH AFRICA’S BIODIVERSITY ACT 2004 South Africa is ranked as the third most biologically diverse country in the world.138 It provides a useful point of reference as (in common with India) the countries share a common colonial legislative history and public administration structures. South Africa is heavily dependent on its undisturbed natural environment as a major source of high value international tourism interest, rural employment and foreign exchange earnings. In 2004 South Africa promulgated the National Environmental Management: Biodiversity Act (the Biodiversity Act) in order to comply with its CBD obligations. The main objectives of the Act are to manage and conserve biological diversity in South Africa; to ensure that indigenous biological resources are used sustainably; and to ensure the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources. ‘Bioprospecting’ is defined in the Act as any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes‐

(a) the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application;

(b) the utilisation for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities; or

(c) research on, or the application, development or modification of, any such traditional uses, for commercial or industrial exploitation.

‘Indigenous biological resource’ is defined generally as

(a) any living or dead animal, plant or other organism of an indigenous species;

(b) any derivative of such animal, plant or other organism; or

(c) any genetic material of such animal, plant or other organism.

However, in relation to bioprospecting, ‘indigenous biological resource’ is given a wider definition to include‐

a. any indigenous biological resources, whether gathered from the wild or accessed from any other source, including any animals, plants or other

138 Kathryn Garforth and Jorge Cabrera , Sustainable Biodiversity Law: Global Access, Local Benefits, CISDL, Canada, 2003, p. 2

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organisms of an indigenous species cultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology;

b. any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms; and

c. any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or any animals, plants or other organisms referred. Indigenous biological resources are defined very broadly, but the term ‘indigenous’ is taken to mean ‘South African’.

The Act establishes the South African National Biodiversity Institute to manage, control and maintain herbaria and other ex situ collections, to report to the relevant Minister regarding protected and vulnerable species, protected and vulnerable areas, the impacts of genetically modified organisms, and generally to monitor the operations of the Act. The Act also requires a permit to be obtained in order to engage in bioprospecting involving any indigenous biological resources; or to export any indigenous biological resources for the purpose of bioprospecting or other research. The law requires that one of three different types of permits be issued for each bioprospecting project: bioprospecting permits; integrated export and bioprospecting permits; and export permits for research other than bioprospecting. Any person already involved in a bioprospecting project had six months from the passage of the Regulations, to apply for a permit. Permits will not be issued to foreign persons or entities unless a South African person or entity is also a co‐applicant. Before a permit is issued, the issuing authority considering the application for the permit must protect any interests any of the following stakeholders may have in the proposed bioprospecting project:

a. a person, including any organ of state or community, providing or giving access to the indigenous biological resources to which the application relates; and

i. whose traditional uses of the indigenous biological resources to which the application relates have initiated or will contribute to or form part of

ii. whose knowledge of or discoveries about the indigenous biological resources to which the application relates are to be used for the proposed bioprospecting.

The issuing authority protects the interests of stakeholders by ensuring that the applicant has disclosed all material information relating to the relevant bioprospecting to the stakeholder and on the basis of that disclosure has obtained the prior consent of the stakeholder for the provision of or access to such resources; and the applicant and the stakeholder have entered into

1. a material transfer agreement that regulates the provision of or access to such resources; and

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2. a benefit‐sharing agreement that provides for sharing by the stakeholder in any future benefits that may be derived from the relevant resource. The Act specifically states that the issuing authority may facilitate negotiations between the applicant and stakeholder and ensure that those negotiations are conducted on an equal footing.

The Act also specifies what details are to be contained in the benefit sharing agreements, including:

1. the type of indigenous biological resources to which the relevant agreement applies

2. the area or source from which the indigenous biological resources are collected or to be to collected

3. the quantity of indigenous biological resources that is to be collected

4. any traditional uses of the indigenous biological resources by an indigenous

5. the present potential uses of the indigenous biological resources.

The agreements must name the parties to the benefit‐sharing agreement; set out the manner and extent to which the indigenous biological resources are to be utilised or exploited for purposes of such bioprospecting; set out the manner and extent to which the stakeholder will share in any benefits that may arise from such bioprospecting; and provide for a regular review of the agreement by the parties. A benefit sharing agreement may include a material transfer agreement. All benefit sharing agreements and material transfer agreements must be submitted to the relevant Minister for approval. The South African law also establishes a Bioprospecting Trust Fund into which all moneys arising from benefit‐sharing agreements and material transfer agreements, and due to stakeholders, must be paid, and from which all payments to or for the benefit of stakeholders must be made. Penalties for contravening any of the provisions of the Biodiversity Act or Regulations are provided. These include a criminal conviction and a fine or imprisonment for a period not exceeding five years, or both such fine and imprisonment. There are certain exemptions from the South African Biodiversity Act. These include:

1. Research other than bioprospecting, provided that it is conducted within the borders of South Africa. Such research may not be conducted for the purposes of commercial or industrial exploitation (the filing of a complete patent application relating to the research will constitute commercial exploitation);

2. The export of ex situ indigenous biological resources (indigenous biological resources that occur in collections outside their natural habitat) for the purposes of research other than bioprospecting, provided that the exporter has entered into an export agreement and notified the issuing authority thereof;

3. The trade of commercial products purchased from a bioprospector, provided that the bioprospector has complied with the Regulations on Bioprospecting, Access and Benefit‐sharing;

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4. The keeping, breeding, cultivation, moving, trading and use of wildlife (defined to include mammals, birds, reptiles, amphibians, arthropods, fish and plants) not directed at the development and production of: products such as drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours and extracts; or

5. new plant varieties and products;

6. the collection, use, propagation, cultivation or trade of indigenous biological resources for domestic use or subsistence purposes;

7. the artificial propagation, multiplication or cultivation of flora species for the local and international cut flower and existing ornamental plant markets;

8. aquaculture or mariculture activities involving fresh water and marine species producing specimens for consumption purposes.

South Africa’s Biodiversity Act has been criticised for not meeting some of the requirements of the CBD. For example, it prohibits holders of traditional knowledge from unreasonably refusing to enter into benefit sharing agreements where the knowledge to be used is in the public domain. 139 PHILIPPINES COMMUNITY INTELLECTUAL RIGHTS PROTECTION ACT (2001, DRAFT) As explained in the Explanatory Note to the Bill, the objective of this bill is ‘to provide for a system of community intellectual rights protection of local and indigenous cultural communities with respect to the development of genetic resources and the conservation of the country’s biological diversity. The bill explicitly concedes that biodiversity has been and should remain the commons of local communities with both resources and knowledge being freely exchanged among different communities who are also users of the innovation.’ The Note continues: ‘the existing legal framework for intellectual property rights (IPR) in the country today recognizes only the dominant industrial model of innovation. It has failed to recognize the more informal, communal system of innovation through which farmers and indigenous communities produce, select, improve, and breed a diversity of crop and livestock varieties – a process which takes place over a long period of time. The existing IPR framework effectively sidesteps the traditional knowledge of indigenous communities even if it is widely acknowledged that without the input of indigenous knowledge, many products used extensively throughout the modern world would not exist today.’ The bill therefore seeks ‘to re‐define innovations to recognize both the collective and cumulative intellectual right of the country’s cultural communities over the same innovations.’ The Bill defines innovation to include indigenous knowledge howsoever recorded, whether formally or informally, whether in writing or orally, in light of the fact that many indigenous communities do not have a written tradition or culture.

139 Kathryn Garforth and Jorge Cabrera, Sustainable Biodiversity Law: Global Access, Local Benefits, The Centre for International Sustainable Development Law, Canada, 2003, p. 3

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The Bill also seeks to implement the obligations under the CBD regarding the equitable sharing of benefits arising from the use of traditional knowledge. To overcome the difficulty of defining local communities, communities can register as an organization which will have a legal personality with rights similar to any other legal entity. Failure to register does not preclude a community from claiming to be and being recognised as the custodian of an innovation. Most important from a geopolitical perspective, the Bill is intended to ‘attenuate and prevent the assault against our country’s genetic resources by major multinational companies (especially those working in the areas of drugs and agriculture) and their home governments. Its central thesis aims to overthrow the long‐standing paradigms embodied in such international institutions as the World Trade Organization (WTO) –‐ formerly the GATT ‐‐, and the Food and Agriculture Organization (FAO) which recognize genetic resources as a ‘universal heritage’ in order to guarantee free access for the First World commercial interests to the raw materials of the South.’ In section 2, titled ‘Declaration of Policies’, the Bill affirms State Recognition of ‘the original rights of indigenous peoples and local communities over plant and genetic resources, traditional medicines, agricultural methods and local technologies they have discovered and developed.’ The communities are recognised as ‘the general owners, with primary and residuary title to: (i) the formal or informal communal systems of innovation through which they produce, select, improve and breed a diversity of crop and livestock varieties; and (ii) the plant varieties, genetic resources, traditional medicines, agricultural practices and devices, and technologies produced through these systems.’ The Bill also affirms ‘Community Ownership of Traditional Knowledge – All benefits arising from the knowledge and innovations by indigenous and local communities should accrue to their development and welfare and should therefore be equitably shared. Any commercial utilization of such knowledge and innovations should be made only with the free and informed consent of its general owners or custodians under terms mutually agreed upon.’ The Bill also strives to protect and encourage the customary use of biological resources in accordance with traditional cultural practices which are compatible and which promote conservation and sustainable use. Section 3 of the Bill has some useful definitions of terms.

‘Commercial utilization’ is defined as occurring ‘when any process or product is made available for sale with profits in the market.’

‘Community process’ is defined as ‘knowledge whose discovery or development could not be ascribed to a single individual or juridical person, and/or which resulted from the contributions of different groups or generations.’

‘Farmer’ refers to ‘all those engaged in the cultivation of crops living within the territory of the Philippines.’

‘Farmer‐innovator’ means ‘i) an individual who has provided or was the source of parent strains used in the development of a new plant variety; ii) the local community which has helped to conserve and develop the genetic stocks which have gone into the pedigree of a

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new variety; or iii) the residents of an area rich in plant genetic resources from where breeders or breeding institutions responsible for the new variety have obtained donors of genes for resistance / tolerance / avoidance to biotic and/ or abiotic stress or other valuable characters.’

‘Gene bank’ refers to ‘a temperature‐ and humidity‐controlled facility used to store seed (or other reproductive materials) for future use in research and breeding programs. Also called a ‘seed bank.’

‘Germplasm’ means ‘the total genetic variability, represented by germ cells or seeds, available to a particular population of organisms.’

‘Indigenous peoples’ or ‘indigenous groups’ or ‘cultural communities’ are defined as ‘a group of people sharing common bonds of language, customs, traditions and other distinctive traits, and who have, since time immemorial, occupied, possessed, and utilised a territory except when such possession is either prevented or interrupted by war, force majeure, displacement or force, deceit or stealth, or other usurpation.’

This can be compared and contrasted with a ‘community’ which is defined in Section 5 as ‘any group of people living in a geographically defined area with a common history and definitive patterns of relationship.’ ‘Innovation’ is defined as ‘the process or products derived from such processes, whether documented in written, recorded, or oral form, which constitute an introduction of new changes, including alteration, modifications, or improvements.’ ‘Plant variety’ it is said ‘includes cultivar, clone, folk variety hybrid and strain.’ ‘Traditional method’ is defined as ‘discoveries, innovations and technologies made by indigenous peoples and local communities that are usually not recorded in written form, and are transmitted orally from generation to generation.’ As it relates to a definition of ‘indigenous knowledge’ and ‘traditional knowledge’, the Bill makes it clear that ‘indigenous knowledge forms part of traditional knowledge, and refers to knowledge distinct to indigenous peoples. Both terms may be used interchangeably.’ Section 4 of the Bill details what is termed as ‘Community Intellectual Property’. It states: ‘the following are hereby declared as the intellectual property of their communities of origin, and these communities shall at all times and in all perpetuity be the lawfully recognized holders of the primary and residuary title to these property:

a. parent strains and genetic material discovered or selected and conserved by local communities, which were used in the development of new plant varieties, and which can be harnessed for other potential uses;

b. seeds and reproductive material selected, cultivated, domesticated and developed by local communities in situ;

c. agricultural practices and devices developed from indigenous material, customs, and knowledge;

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d. medicinal products and processes developed from the identification, selection, cultivation, preparation, storage and application of medicinal herbs by local communities and indigenous peoples;

e. cultural products form local communities, such as weaving patterns, pottery, painting, poetry, folklore, music, and the like;

f. all other products or processes not made by a single person or juridical personality, which was discovered through a community process, or when the individual making the innovation does not claim the knowledge as his own, provided, that any individual or juridical personality making such a claim should present proof of innovation or a history leading to the discovery that would justify his claim.

Section 5 deals with ‘Community Ownership of Intellectual Property’. It establishes that a community may be registered with the appropriate government agency as a tribal council, foundation, cooperative, people’s organization, or any other form of organization that would effectively represent its interests, provided that their failure to do so shall not prejudice its status as custodians or stewards of this traditional knowledge A community shall automatically become the general owners of any form or product of traditional knowledge, once this is entered in any of the registers provided for in Section 6 of this Act. As general owners, they are entitled to collect a justifiable percentage from all profits derived from the commercial use of their knowledge, for a period of ten years starting from the date of registration. All benefits shall be given directly to the organization that effectively represents the community’s interests. In the absence of such an organization, the benefits are to be held in trust by the State and will be released only by legislation enacted in favour of the community. Section 6 addresses ‘Registration of Community Intellectual Property’. It provides that the State, in consultation with the concerned local communities, academic experts, and non‐government organizations, shall take the initiative in providing technical and other related forms of assistance in the documentation, identification, and characterization of community intellectual property. The State shall also promote rules whereby non‐government organizations can extend similar assistance to local communities. All identified and documented community intellectual property shall be entered by the concerned agencies of government in the following registers:

a) For Plant Varieties, and Other Plant Reproductive Materials: The National Commission on Plant Genetic Resources shall keep and update a National Inventory of Plant Varieties, which is composed of different Regional Registers of Plant Varieties maintained by the Commission.

b) For Cultural Products and Heritage: The National Museum shall keep and maintain a National Register of Indigenous Cultural Heritage.

c) For Inventions, Industrial Designs and Utility Models, the Bill proposes to amend the functions of the Bureau of Patents, Trademarks, and Technology Transfer

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(BPTTT), to include the maintenance and updating of a National Register of Indigenous Inventions, Designs and Utility Models, which will include agricultural practices and devices developed from indigenous material, customs, and knowledge as well as medicinal products and processes developed from the identification, selection, cultivation, preparation, storage, and application of medicinal herbs by local communities and indigenous peoples. All other products and processes which become community intellectual property not covered by the National Inventory of Plant Varieties or the National Register of Indigenous Cultural Heritage shall be the jurisdiction of the BPTTT.

Section 7 of the Bill proposes to establish the National Commission on Plant Genetic Resources to keep an updated National Inventory of Plant Varieties to record and recognize the contributions of local communities and indigenous peoples to the development and discovery of new plant varieties. PHILIPPINES’ INDIGENOUS PEOPLES RIGHTS ACT 1997 The following definitions from the above Act are also relevant and useful for analysis: Communal Claims ‐ claims on land, resources and rights thereon; belonging to the whole community within a defined territory; Customary Laws ‐ a body of written and/or unwritten rules, usages, customs and practices traditionally and continually recognized, accepted and observed by respective Indigenous Cultural Communities/Indigenous Peoples; Free and Prior Informed Consent ‐ the consensus of all members of the Indigenous Cultural Communities/Indigenous Peoples to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community; TRADITIONAL KNOWLEDGE DATABASES Traditional Knowledge Registries or Databases are official collections of documentation that describe TK. Registries may be maintained nationally by governments, or locally by communities. TK registries or databases may be either public or private. Public registries place information in the public domain and in doing so, may serve as a form of prior art or defensive disclosure, capable of defeating patent applications. What this means is that if the knowledge is already existing as part of the ‘prior art’, as evidenced by its inclusion in the public database, any patent application which relies on that traditional knowledge may be refused on the grounds that the so‐called invention is not novel or inventive. This type of use of TK databases serves an important function in that it precludes patent applicants from being able to acquire patents in respect of knowledge that is already known traditionally, albeit not registered or the subject of any previous patent. However, this type of use of TK databases poses a double edged sword situation, for while, as part of the prior art, patent applicants who rely on such knowledge will not be successful in their patent applications, the public nature of the registries means that the knowledge is accessible to

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outsiders who may use it freely, which limits the regulation of access and benefit sharing to that knowledge. It also means that once in the public domain, the TK holder (the State or the relevant community) could not itself apply for a patent in respect of the use of the knowledge. Private TK registries or databases serve a different function. They are not accessible to the general public and do not place knowledge in the public domain and therefore cannot be used to search for prior art so as to defeat patent applications. Their main aim is to preserve knowledge for cultural, historic and anthropological purposes. As a knowledge library, private registries or databases document and maintain TK belonging to a community or to the nation as a whole. However they may also be useful as a tool for access and benefit sharing agreements by serving as a catalogue of knowledge that can be licensed to outside parties for research and/or product development. Private TK registries or databases can therefore be effective as protection and preservation tools for TK and as subjects of access and benefit sharing regulation. THE JAMAICA MEMORY BANK The Jamaica Memory Bank (JMB) was established in 1980 to preserve aspects of Jamaica’s heritage by the documentation of memories of senior citizens. The JMB does this by making audio and audiovisual recordings of individuals whether in interviews, or performances and has amassed a considerable database of such information. At its inception, the JMB incorporated a pre‐existing Jamaican Folk Music Research Unit which at the time already had a collection of over 2000 musical works, 20 instruments and 150 photographs. To date the JMB has in excess of 2000 combined video and audio tapes in its possession, comprising interviews of hundreds of individuals and performances of over 20 cultural groups in Jamaica. In 1990 the JMB was incorporated into the African Caribbean Institute of Jamaica (ACIJ), under the auspices of the Institute of Jamaica. The ACIJ was established in 1972 to ‘deepen public awareness of the contribution of African retentions to the Jamaican cultural ethos.’140 The ACIJ/JMB project has accumulated archives on traditional dance forms, language, folklore, traditional and popular music, social history and movements, and ethno‐medicine. This includes a database of plants found in Jamaica, where they are found, their uses and how they are prepared for use. ACIJ/JMB ABS policy and procedure The ACIJ/JMB utilises a standard form, called an ‘Oral History/Traditional Knowledge Consent and Release Form’, to be completed by persons whom they interview or otherwise record. By completion of the form, the person who is interviewed or recorded grants irrevocably and unconditionally to the ACIJ/JMB the knowledge taken from the interviews or performances ‘as a donation for such scholarly, historical and educational purposes as the institution shall determine, together with all rights, including copyright and related rights in the Material’. The grant of such rights is made on the stated premise that the Material will be made available by the ACIJ/JMB to the public ‘for research and educational purposes’.

140 ACIJ Pamphlet, 2008

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The procedure for a member of the public to obtain access is far less regulated. In fact, there is no standard form that members of the public who wish to access the information held in the JMB have to complete. There is therefore no way established and in effect at present that is capable of regulating whether members of the public who come to access the information, are seeking to do so for research and educational purposes. The member of the public is not required to sign any declaration or agreement restricting his or her use of the information in the JMB for research and educational purposes only. Neither is the member of the public expressly made subject to recognition of existing intellectual property rights in the material in the JMB. Fees are charged for access but there is no provision for any of the traditional communities from which the material was obtained, to benefit from a share of those fees. Public access to this information is unofficially restricted due to the lack of proper intellectual property regulation of the content within the JMB. On the whole, there is a stark silence and gaping gap in the laws in Jamaica to regulate access to traditional knowledge. This is one of the major concerns coming out of the consultations undertaken by the Project. The ACIJ/JMB felt that there existed a grey area in regard to who owns traditional knowledge and that there was urgent need for a policy to address this issue, even as the grey areas continue to be ironed out internationally. Storage Mechanisms & Practices141 In response to the several questionnaires circulated among stakeholders, it was gleaned that the data in the JMB is stored in library databases as well as in internal databases such as books, files, worksheets, recordings etc. A recent status report showed that the ACIJ/JMB collection currently consists of:

50 U‐matic tapes

510 reel‐to‐reel audio tapes; average playing time 90 minutes each

1765 TDK and Maxell cassette audio tapes; average playing time 90 minutes each

395 VHS video tapes; average playing time 90 minutes each; and

1537 photographs (black & white and coloured).

The data is stored following a format including logging in the data, which is then given an accession number, and then the physical and electronic copies are stored. The media on which the original information is stored, all have limited life span. Not all the data is stored electronically but there is an ongoing process of digitisation of all material, the intention to have electronic copies of all material in the JMB. Ideally, the data is backed up electronically once a week. A 2002 study of the costs associated with preserving the data stored in the JMB was undertaken and it was concluded that priority should be given to the reel‐to reel tapes which have become obsolete. The electronic data collected is not accessible on the internet, only by visiting the ACIJ/JMB in Kingston. In Kingston, the data is protected by passwords etc. ACIJ/JMB staff and

141 The contribution of Miss Rachel Allen to this section of the Report is hereby acknowledged.

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members of the public have access to the catalogue of data. There is at present no data available that accurately categorises the data held in terms of how much data is collected from senior citizens or how much data relates to biodiversity and or traditional knowledge. However where there is data collected pertaining to plants and their traditional uses, effort is made to identify the plant or genetic resource referred to, by asking the interviewee to describe it fully. Additionally in some cases identification is aided by photographing or video recording the plant or genetic resource. Rarely however do the interviews ask the interviewee to identify the location of the plants; only the location of the interview is recorded routinely. The details as to the traditional knowledge, for example steps taken to prepare herbal remedies, vary depending on the interviewee. Collection, security, access and benefit sharing The ACIJ/JMB does it seem have a policy relating to requests in that they try to handle all requests for access within 2 to 3 days. This may mean giving the person requesting access the means to listen to the audiotapes and/or see the videotapes. Additionally, this may mean making copies as requested of selected audio and video recordings. At present, although not verified by any data, the ACIJ/JMB is mostly accessed by students, researchers and other academics, for general Afro‐Caribbean studies and particularly for research on traditional religions. International Comparisons and Best Practices regarding Databases India has established People’s Biodiversity Registers which consist of people’s knowledge of biodiversity, its locations and uses. The registers are developed from the grassroots come up, firstly through local school and college teachers, students and NGOs. Biodiversity registers are then compiled into computerised databases at the district and state level. In India, these registries are used at the national level for identification of prior art in patent applications. Similarly, in April 2002, the State Intellectual Property Office (SIPO) of the People’s Republic of China established a Traditional Chinese Medicine (TCM) Patent Database to meet the needs of patent examiners searching for the prior art in patent applications. Thus the traditional knowledge is thrust into the public domain by its inclusion in public databases and therefore regulation of use of that knowledge becomes difficult if not impossible. It has therefore been suggested by some, in order to counter that difficulty, that the TK database should not be public, but private, only accessible to patent examiners. However, in line with current intellectual property law, if the TK is or was not in the public domain, then it could not be classified as prior art and therefore could not operate to defeat a patent application related to traditional knowledge. The legal anomaly creates a ‘catch 22’ problem, which is but one example of the incompatibility of intellectual property law and traditional knowledge. In relation to public TK databases such as the JMB, the intellectual property/TK emphasis should be on ensuring that the process of collection, storage and retrieval of traditional knowledge gives adequate consideration to the rights of indigenous and local communities whose knowledge is being collected, stored and accessed. The principles of prior informed

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consent, mutually agreed terms and benefit sharing are applicable to TK databases also. Therefore, in the conducting of interviews, the recording of performances and the collection of other audio and video material that contains TK, the JMB ought to be mindful of the CBD principles. Findings

1. Public databases pose problems for traditional knowledge holders in some circumstances.

2. The IOJ in terms of its policies and procedures is ill‐equipped at present to handle the many aspects of access and benefit sharing in relation to the traditional knowledge in its possession.

3. The CBD principles of prior informed consent, mutually agreed terms and benefit sharing are applicable to TK databases and hence to the JMB.

PART IV: CONCLUSIONS

1. Jamaica is rich in genetic resources and associated traditional knowledge.

2. Jamaica has a sound biodiversity policy (National Biodiversity Strategy and Action Plan). However it has not been implemented.

3. The environmental and related laws in Jamaica provide a good framework upon which to develop and implement CBD‐compliant legislation and procedures. However the gaps and shortcomings in the environmental and related laws in Jamaica are significant as it relates to compliance with the CBD.

4. The intellectual property and related laws in Jamaica provide a good framework upon which to develop and implement CBD‐compliant legislation and procedures. However the gaps and shortcomings in the intellectual property and related laws in Jamaica are also significant as it relates to compliance with the CBD.

5. Whereas the intellectual property laws of Jamaica are administered by one agency, JIPO, the environmental laws of Jamaica are administered by several agencies, which results in unnecessary overlaps and duplications.

6. Regulation of access to genetic resources in Jamaica is inadequate to comply with the CBD.

7. There are no provisions in Jamaican law requiring benefit sharing and there is no legal protection for traditional knowledge.

8. There has been no attempt to enact any policies, laws or procedures to regulate the acquisition of intellectual property rights in relation to genetic resources and/or traditional knowledge. This includes to prevent persons or entities in specified circumstances from acquiring intellectual property rights in respect of subject matter which utilises genetic resources or traditional knowledge, as well as to entitle persons and communities in specified circumstances to acquire intellectual property rights in respect of subject matter which utilises traditional knowledge.

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9. The intellectual property law system on a whole is inadequate to protect traditional knowledge, which differs in nature and use from knowledge generally protected by intellectual property law.

10. The CBD makes it imperative that access to genetic resources is to be encouraged but regulated to ensure that the prior informed consent of states and of indigenous and local communities be obtained before access can be had.

11. In most of the over 50 countries which have enacted CBD‐compliant laws, access to genetic resources and/or TK is regulated by a permit/licence scheme.

12. The CBD makes it imperative that resource/TK providers, whether states or communities, share in the benefits arising out of the utilization of genetic resources and traditional knowledge in respect of which they have granted access.

13. In order to guarantee an equitable share of benefits, most of the over 50 countries which have enacted CBD‐compliant laws require resource/TK receivers to enter into benefit sharing agreements upon mutually agreed terms with resource/TK providers.

14. In most of the over 50 countries which have enacted CBD‐compliant laws, the permit/licence scheme is used to regulate and enforce prior informed consent, mutually agreed terms and equitable benefit sharing.

15. In some countries, patent laws have also been amended to require disclosure of origin of genetic resources and/or TK prior to the grant of a patent, as a means of enforcing the CBD provisions relating to access and benefit‐sharing.

16. Countries have adopted varying approaches to practically implement the CBD imperatives regarding the rights of indigenous and local communities to be consulted, to effective participation, to give or withhold prior informed consent, to mutually agreed terms, and to benefit sharing.

17. In general, community or communal rights are not recognised in relation to land/resource ownership or intellectual property.

18. Some countries have adopted stand alone legislation to give full effect to the rights of indigenous and local communities under the CBD, while other countries have adopted detailed Biodiversity laws which integrate the several pieces of environmental laws previously in force to comply with the CBD holistically, whether in addition to or exclusive of any law dealing with community rights.

19. Any law(s) aimed to implement and comply with the CBD must clearly outline and balance the rights of the State, the rights of indigenous and local communities, the rights of private resource owners or holders, and the rights and interests of resource/TK receivers.

20. Any law(s) aimed to implement the CBD must clearly outline the procedure which those seeking access to genetic resources and/or traditional knowledge must comply with, as well as the penalties for non‐compliance.

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PART V: MAIN CHALLENGES AND FACTORS FOR SUCCESS

This Part focuses on the main challenges and factors for success in devising a suitable access and benefit sharing (ABS) regime, including amendment and implementation of law, policy and procedure, to comply with the CBD in Jamaica. Amendment of environmental and related laws One of the main challenges is to harmonize the several pieces of environmental legislation to devise an appropriate ABS regime, which entails resolving the overlaps and duplications between the mandates and operations of different agencies including the NRCA, JNHT, Forestry Department (Ministry of Agriculture), Fisheries Division (Ministry of Agriculture), Ministry of the Environment, and the JNHT. This is not an easy task and it will take time. The main factor for success in this regard is that there needs to be an inter‐agency consultative process involving the agencies above as well as JIPO and the Parliamentary Counsel. There also needs to be an agency or government ministry to take the lead to co‐ordinate the inter‐agency consultative process. The lead agency will have to comprise experts familiar with not only the CBD and the environmental laws in Jamaica, but also familiar with the intellectual property protocols and best practices which have been instituted in other jurisdictions to implement an adequate ABS regime. Amendment of intellectual property and related laws The main challenge here is to amend the intellectual property laws as recommended below, while still maintaining consistency with the international intellectual property law regime. Disclosure requirements for genetic resources and traditional knowledge are currently being looked at internationally, as is a regime to protect traditional knowledge. The compatibility of traditional knowledge with intellectual property is debatable and finding the best method to achieve interoperability between the two knowledge systems. The main factor at this time that will inform success in this regard is the conclusion of the CARICOM TK Working Group, which was initiated in March 2008 to hold consultations throughout CARICOM and develop a Model TK Law for the region. The policy of the government therefore is to await the outcome of that Working Group before deciding how to amend Jamaica’s intellectual property laws to protect traditional knowledge. Implementation of ABS regime The implementation of an appropriate ABS regime, once decided and enacted, will also depend on several agencies involved in an inter‐agency approach to implementation. The main challenge here is attracting the several persons with the expertise and understanding required to administer the new or substantially amended regime. Another main challenge in this regard is the implementation of the new benefit‐sharing provisions of the ABS regime. Benefit‐sharing being new to Jamaica, it will require detailed procedural guidelines and regulations to be prepared, which will then require persons with the requisite expertise to advise the several agencies or government ministries regarding implementation of the policy, laws and procedures.

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It will also require, as a factor for success, extensive training by experts of individuals both within relevant government agencies and departments, as well as in private industry and in indigenous and local communities, to handle the new ABS regime, especially the benefit‐sharing aspects. Empowering indigenous and local communities A major challenge will be to empower indigenous and local communities, as in situ conservators of biodiversity, to be able to administer the new regime in their communities. First and foremost, this requires the issue of communal land ownership to be settled, especially in relation to the Maroons and their Treaty rights. This will not be easy but is necessary to properly empower communities to attract the capital needed to actively manage their biodiversity. In relation to other communities, such as the Rastafari community and other local farming communities, which have been living off of inadequate land resources but nevertheless maintaining environmental traditions and ways of life, access to land is critical to their empowerment. Another major challenge is to arm indigenous and local communities with current environmental, technological and legal information, to make biological conservation and other traditional knowledge practices more efficient, while maintaining the traditions. This can be done by organising workshops and other educational forums where members of the communities can learn the intricacies of the new ABS regime. Specifically, indigenous and local communities should be empowered to know what information to request of bioprospectors, which government agency to refer bioprospectors to (if that is decided by the communities) and which essential terms and conditions, including relating to benefit sharing, should be included in any grant of access to genetic resources and/or traditional knowledge. The main factor for success in relation to communities is that there is a generally good relationship between most communities in Jamaica and the government. Indigenous communities, particularly the Maroons and the Rastafari communities, have been involved extensively in the CARICOM TK Working Group consultations, as well as in the consultations held as part of the project for which this Report was prepared. Hence there is already knowledge and understanding somewhat within some of the communities of the context within which regulation of access to genetic resources and traditional knowledge is being contemplated and projected nationally, regionally and internationally. The need now therefore is for the law to reflect the current relationships that exist between indigenous and local communities and the Government of Jamaica. Funding As with all initiatives being developed in Jamaica and other developing countries, a major challenge is funding. Substantial funding is required to hire experts to conduct ABS training workshops island wide, to hire additional staff and personnel required to fill new posts that will need to be created and filled to administer the ABS regime. A factor for success is that there is funding available internationally to assist developing countries to enact and implement CBD‐compliant laws and procedures. The CBD itself is

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premised on obligations of developed countries to assist developing countries to meet its obligations under the Convention, including transfer of technology. Therefore it is possible for Jamaica to access funding in this regard. Additionally, funding is also available internationally to indigenous and local communities to assist them to increase their capacity to preserve their genetic resources and traditional knowledge, scrutinise access applications and negotiate contracts.

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PART VI: RECOMMENDATIONS

This Part of the Report sets out recommendations for improvements in the administration of intellectual property aspects of an appropriate access and benefit sharing regime, in relation to biodiversity and traditional knowledge in Jamaica. They have been based on the findings and, in particular, the conclusions described above. The recommendations have been set out in the following five sections:

1. Environmental Law Reform Recommendations;

2. Intellectual Property Law Reform Recommendations;

3. General Policy and Procedural Recommendations;

4. Community Recommendations; and

5. Jamaica Memory Bank Recommendations.

Section 1 ‐ Environmental Law Reform

These recommendations are made on the premise that a holistic Biodiversity Act is the most suitable way to enact and implement Jamaica’s obligations under the CBD. However the substance of the recommendations are equally applicable if it is decided that the existing laws are to be retained and amended, with or without a new Biodiversity Act. The important aspect of implementation of the recommendations is to incorporate the new laws, policies and procedures in the most harmonious and practical way. Recommendation 1 – A holistic Biodiversity Act must be enacted to properly and effectively regulate access and benefit sharing in respect of genetic resources and traditional knowledge, with one main regulatory body established to administer the Act in co‐operation with other relevant agencies. The existing NRCA Permit requirements and National Parks Regulations and Forms must be incorporated and expanded in the new Biodiversity Act to require:

more information from applicants;

that applicants obtain a permit to extract genetic resources;

that applicants make adequate benefit sharing arrangements regarding their use of genetic resources and traditional knowledge.

Recommendation 2 ‐ The powers of the Minister with responsibility for the Environment must be expanded. The Minister must be authorised by law to make regulations to address benefit sharing, mutually agreed terms, prior informed consent and related rights of indigenous and local communities.

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Recommendation 3 ‐ Access to all genetic resources, including all species of animals, birds and plant life, must be regulated. The law must:

regulate access in respect of all species of animals, birds and plant life;

regulate access to ensure fair and equitable benefit sharing; and

require consultation with indigenous and local communities prior to designating species of animal life as ‘protected’ and prior to declaring areas as game sanctuaries and game reserves.

Recommendation 4 ‐ The Jamaican laws must be structured to comply with and be consistent with the Convention on Biological Diversity. The Jamaica laws must protect and regulate access and benefit sharing in relation to genetic resources and traditional knowledge. In particular, the Jamaican laws must define: ‘Biological diversity’ as it is defined in the CBD, as ‘the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.’ ‘Genetic resources’ in the same way that they are defined in the CBD, as ‘genetic material of actual or potential value.’ ‘Genetic material’ as it is defined in the CBD, as ‘any material of plant, animal, microbial or other origin containing functional units of heredity.’ ‘Traditional knowledge’ as defined by WIPO, as ‘the know‐how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge that is embodied in the traditional lifestyle of a community or people, or is contained in codified knowledge systems passed between generations, and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.’ ‘Biodiscovery’, as defined in the Northern Territory of Australia’s Biological Resources Act, as ‘research on samples of biological resources, or extracts from those samples, to discover and exploit genetic or biochemical resources of actual or potential value for humanity.’ ‘Bioprospecting’ as ‘the taking of samples of biological resources, existing in situ or maintained in an ex situ collection of such resources, for research in relation to any genetic resources, or biochemical compounds, comprising or contained in the biological resources.’ Recommendation 5 ‐ The Jamaican laws and regulations must create an effective permit system for bioprospecting that clearly states the requirements for application for a permit The new Biodiversity Act must require the following:

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1. applicants name and other identifying details, including the applicants place of business;

2. a description of land or waters where bioprospecting is sought;

3. a description as far as possible of biological material proposed to be taken including its scientific classification;

4. the period for which the permit is sought; and

5. the purpose of the access.

The permit must be on condition that the applicant will enter into a benefit sharing agreement to fairly and equitably share the benefits of the use of any material taken, whether for commercial or non‐commercial purposes. The submission of a bioprospecting plan must also be required. The bioprospecting plan must include details of:

1. the activities, whether commercial or non‐commercial, that the prospector proposes carrying out;

2. a proposed timetable for carrying out the activities;

3. the parts of any of the activities the applicant proposes to carry out outside the State;

4. the types of any of the activities the applicant proposes engaging someone else to carry out for the applicant; and

5. any grants or other financial assistance given, or to be given, to the applicant for the activities.

Applicants must be required to provide for recognition of and valuing of any knowledge of indigenous and local communities to be used, and must include the following:

1. full details of the parties to the agreement;

2. if the resource access provider is the person granting physical access to the area – details regarding the time and frequency of entry to the area that has been agreed to be granted;

3. the resources (including the name of the species, or lowest level of taxon, to which the resources belong, if known) to which access has been agreed to be granted;

4. the quantity of the resources that has been agreed can be removed from the area;

5. the purpose of the access;

6. a statement setting out the proposed means of labelling samples;

7. the agreed disposition of ownership in the samples, including details of any proposed transmission of samples to third parties;

8. a statement regarding any use of traditional knowledge, including details of the source of the knowledge;

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9. a statement regarding benefits to be provided or any agreed commitments given in return for the use of traditional knowledge;

10. the details of any proposals of the applicant to benefit biodiversity conservation in the area if access is granted; and

11. details of the benefits that the resource access provider will receive in return for the taking of the resources.

Recommendation 6 ‐ The Jamaican laws and regulations must require benefit sharing agreements. Benefit sharing agreements must be required as a prerequisite to the grant of access to genetic resources. These agreements must state:

1. the date the agreement is entered into;

2. the duration of the agreement;

3. the benefits of biodiscovery to be provided by the biodiscovery entity to the State or relevant community;

4. when the benefits are to be provided;

5. if the benefits include the payment of amounts of money to the State or relevant community ‐ the amounts, or a way of working out the amounts;

6. if native biological material, the subject of the agreement, is to be taken under a collection authority—the number, or other identification, of each authority under which the material is to be taken;

7. what matters are reportable matters for the agreement; and

8. the biodiscovery entity’s place of business.

A benefit‐sharing agreement must not be valid unless the resource access provider has given prior informed consent to the terms of the agreement. In considering whether a resource access provider has given informed consent, the following must be considered:

1. whether the resource access provider had adequate knowledge of the law and was able to engage in reasonable negotiations regarding the benefit‐sharing agreement with the applicant for the permit;

2. whether the resource access provider was given adequate time:

a. to consult with relevant people, including the traditional owners for the land; and

b. to negotiate the benefit‐sharing agreement; and

3. whether the resource access provider has received independent legal advice about the permit application and requirements of the Act.

Recommendation 7 – A designated Regulatory Authority must maintain centralised records of requests, activities and agreements associated with access to genetic resources and biodiversity‐related traditional knowledge.

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A designated regulatory authority must be required to maintain a register of information about the following:

1. permits, relating to biodiscovery, issued (or declined to be issued) by the permit issuing authority;

2. samples taken under those permits and details of samples being lodged or transferred to other parties;

3. benefit‐sharing agreements;

4. certificates of provenance (an original document issued by the State stating the specified biological resources, or extracts from a named organism that were taken, and that the sample was taken under a permit scheme intended to minimise negative impacts on biodiversity; with the informed consent of resource access providers; and that a benefit‐sharing agreement had been negotiated and was in place.)

After the bioprospector has taken the biological resource samples, the bioprospector must be required to file a report with the permit issuing authority stating:

1. the date each sample was taken;

2. the location from which the sample was taken (by GPS coordinates using WGS84 datum);

3. the species of each sample; and

4. the quantity of the sample taken.

If it is a condition of the permit, the bioprospector must also lodge samples of the biological resources taken with the Scientific Research Council and the Institute of Jamaica and advise the permit issuing authority of the date on which the samples were so lodged. Recommendation 8 – A national Biodiversity Trust Fund or other appropriate kind of national fund must be established to manage the results of successful benefit sharing agreements. The objective of the Fund must be to support biodiversity‐related conservation, research and community projects. The Fund must be administered by a Board of Trustees and include representatives from government, environmental non‐governmental organizations, and indigenous and local communities. The establishment of the fund must be done in consultation with government, environmental non‐governmental organizations, and indigenous and local communities in Jamaica. All indigenous and local communities, especially those that are in situ, and environmental NGOs, must be encouraged and facilitated to present relevant projects to the administrative management of the Trust for financial support. This must not preclude indigenous and local communities from entering into benefit‐sharing agreements themselves and receiving funds into their own account(s) for their own developmental purposes and agendas. Financial resources for the fund must be sought from international cooperation and financing available for CBD‐related and/or indigenous and traditional knowledge projects.

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Section 2 ‐ Intellectual Property Law Reform

Recommendation 9 – The Patent Act must be amended. The Patent Act must be amended to provide that all applications for a patent for an invention that utilises genetic resources or biodiversity‐related traditional knowledge, must:

1. Disclose the origin of the genetic resources and/or traditional knowledge used in the invention (to be defined as the ‘source country’ and/or ‘source community’ from which the resource or knowledge was obtained);

2. Prove to the satisfaction of the Patent Registrar that the applicant has obtained in writing the prior informed consent of all indigenous and local communities from which such genetic resources and/or traditional knowledge were obtained (‘prior informed consent to be defined as including full disclosure of the intended purposes of the resources and knowledge to which access was granted and in respect of which the patent application is made, as well as full and effective consultation with the relevant indigenous and local communities); and

3. Prove to the satisfaction of the Patent Registrar that the applicant has entered into fair and equitable benefit sharing agreements with the Government of Jamaica and where relevant, the indigenous and local communities, in respect of the genetic resources and/or traditional knowledge used in the invention.

In addition to the existing bases for challenging patents, the Government of Jamaica and/or relevant indigenous and local communities, must be allowed by the Patent Act to challenge before a Patent Registrar and the Courts, any patent application on the basis of non‐disclosure of origin, lack of prior informed consent, or lack of fair and equitable benefit‐sharing agreements being in place. Also, the Government of Jamaica and/or relevant indigenous and local communities, must be allowed to apply to the Patent Registrar and to the Courts for the revocation of any patent on the basis of non‐disclosure of origin, lack of prior informed consent, or lack of fair and equitable benefit‐sharing agreements being in place. Recommendation 10 – The Copyright Act must be amended. The Copyright Act must provide that copyright will not subsist or be recognised in any literary work that uses traditional knowledge in respect of which the author has not obtained prior informed consent nor concluded benefit sharing agreements with the Government of Jamaica and/or the relevant community from which the knowledge was obtained. The Act must be amended so that traditional knowledge is not ‘saddled’ with criteria of originality, recorded in writing, or intent to trade, as a condition for its protection. In order to qualify for protection, traditional knowledge should be traditional, that is, have been created for traditional purposes, be inter‐generational, pertain to a particular community and be collectively held. As to what constitutes ‘traditions’ of a particular community, that must be determined by the communities themselves, with external reference to recognised experts familiar with the community.

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Recommendation 11 ‐ The Institute of Jamaica Act must be amended. The Institute of Jamaica Act must be amended to:

1. specifically regulate access and benefit sharing in respect of traditional knowledge; and

2. require effective participation and prior informed consent of any indigenous and local community, prior to traditional knowledge that is associated with that community being collected or recorded by the IOJ, and prior to that traditional knowledge being made available to the public by IOJ.

The prescribed forms to apply for access must also be amended to require detailed information from applicants and require applicants to make adequate benefit sharing arrangements regarding their use of traditional knowledge before access is granted.

Section 3 ‐ General Policy and Procedural Matters

Recommendation 12 – Jamaican law must affirm State sovereignty over genetic resources found in or on state lands and in state‐owned ex situ collections and databases and that genetic resources on private lands belong to the landowners. This is so as to ensure that a clear policy is outlined that explains the rights and obligations in respect of genetic resources and access thereto. Recommendation 13 ‐ Access to material or information located ex situ in herbaria, botanical gardens, gene banks, or other collections and databases (including at the Institute of Jamaica, the Jamaica Memory Bank and the Scientific Research Council) must require a written application for a permit. The permit application must:

1. require the applicant to state the reasons (commercial or non‐commercial) for the access request;

2. ensure that once collected, samples of genetic resources should be deposited with the SRC for national development;

3. ensure that the prior informed consent of indigenous and local communities is obtained for each access application in relation to genetic resources found in indigenous or local communities or traditional knowledge; and

4. ensure that the applicant has or will enter into contractual arrangements, if appropriate, to guarantee the fair and equitable sharing of benefits arising out of the utilisation of genetic resources and/or traditional knowledge.

Any individual or entity seeking to use indigenous or traditional knowledge must be required to obtain a permit for the use of it, which should be negotiated with the State or relevant community and include benefit sharing terms and conditions. Communities must be allowed to be represented by their duly recognized representatives and not Government representatives unless so authorised by the communities.

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Recommendation 14 – ‘Prior Informed Consent’ must be legislated. Prior informed consent of the Government and/or the relevant community must be required for access to genetic resources and traditional knowledge. Legal provisions must ensure that:

1. Prior informed consent of and full and effective consultation with indigenous and local communities are essential prerequisites to access relevant genetic resources or traditional knowledge;

2. Legislation will take account of and accord due respect for customary laws, practices and protocols, as well as traditional decision making processes, of the relevant indigenous and/or local community; and

3. Communities must be entitled to deny access to and use of their knowledge without their prior informed consent.

Recommendation 15 – Jamaica law(s) must provide for monetary and non‐monetary benefit sharing for the State and/or relevant communities from access to genetic resources and traditional knowledge. Jamaica should provide in the law for benefit sharing, including joint ownership of intellectual property rights; technology transfer; location of production, research and development units in the State or relevant community. This approach will facilitate better living standards; foster association and co‐operation; and the provision of venture capital funds to help communities in Jamaica. In cases where the resources and/or traditional knowledge may be attributable or associated with a particular community as well as the nation at large, the law must also specify what percentage is to be paid to the community concerned and how. Standard benefit sharing agreements should as far as possible be prepared for Government Ministries, Departments and Agencies, with consultation with JIPO, who would also be involved in negotiating such agreements on behalf of the State when necessary. A review system must be implemented whereby a competent authority or committee reviews all government licences or other contractual agreements to ensure fair and equitable benefit sharing is in place. Recommendation 16 – ‘No Exclusive Rights’ must be legislated. The laws must make it expressly clear that no exclusive rights or exclusive access to a biological resource, arises merely from the issue of a permit by a permit issuing authority or the entering into a benefit‐sharing agreement by a resource access provider. A term of a benefit‐sharing agreement that purports to grant exclusive rights or exclusive access must be void. Recommendation 17 – Jamaican law(s) must provide differential access regimes and procedures for commercial as opposed to non‐commercial purposes. This is so as to encourage research, especially local research, and to maintain traditional and customary uses of genetic resources. However, as many stated purposes of bioprospecting are research, often in collaboration with nationals, but nonetheless are for commercial intent, the requirements of benefit‐sharing must be legislated and enforced for all access, be it by nationals or foreigners.

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Recommendation 18 ‐ The Government must undertake training and raise awareness to enable the various stakeholders to understand and implement the access and benefit‐ sharing laws. The Government must play a prominent and structured role in the implementation of any new or amended laws designed to comply with the CBD, whether they be environmental or intellectual property laws. This must include public awareness‐raising and training programmes for Governmental officials and the public and private sector, as well as for the indigenous and local communities in Jamaica.

Section 4 ‐ Community

Recommendation 19 ‐ The Jamaican laws and regulations must clearly define communities of interest. In particular, Jamaica must define ‘indigenous community’ as ‘a community differentiated by distinctive culture, which is traditionally organized along successive generations and with its own customs.’ The Jamaican legal framework must define ‘local community’ as ‘a community of people living or having rights or interests in a distinct geographical area.’ Recommendation 20 ‐ The rights of indigenous and local communities in respect of traditional lands, traditional knowledge, traditional cultural expressions and intellectual property must be recognised and protected by law. Jamaica must pass an Indigenous Communities Act that recognizes the rights of defined communities to traditional lands, traditional knowledge, traditional cultural expressions and intellectual property, including the right to benefit sharing. In the case of the Maroons of Jamaica, that means that legal recognition must be given to the Treaty rights of the Maroons to exclusively own and control their treaty and traditional lands. Prior informed consent and full and effective consultation and participation of indigenous and local communities in the management of natural resources found in or on traditional lands, as well as in any decision‐making process likely to affect their rights in those lands, must be recognised and embedded in the law. Jamaican law must empower the local and indigenous communities to organise themselves through their own customary and traditional organizations, institutions and mechanisms to be able to give or refuse prior informed consent and to participate effectively. The legislation should obligate the State to assist the communities to participate effectively in decision‐making relating to genetic resources and traditional knowledge; to give or refuse prior informed consent; to negotiate mutually agreed terms; and to ensure equitable benefit sharing. The law must not restrict the right of communities in the national interest. Applications to register knowledge must include identification of the community, its representative, the biological resource over which the knowledge is related, potential uses, description of the knowledge and uses. If knowledge belongs to more than one community, the negotiation process must ensure that all relevant communities are represented in these negotiations, as well as a share of benefits for each of the communities involved. An advisory body must be established to support communities in the negotiation of the licenses.

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Where it is in doubt, or a claim by a particular community to be the source of some genetic resource or traditional knowledge is challenged, a committee must be empanelled to receive historical, scientific, cultural and anthropological evidence to resolve the doubt or challenge. This committee must comprise an individual from the IOJ, the JMB, the SRC, NEPA, JIPO, UWI and a limited number of expert private individuals from any other relevant discipline. The community must be allowed to authorise (license) individuals or other legal entities, whether members of the community or not, to exploit some or all rights in any of the traditional knowledge and/or intellectual property. In addition, the community must be allowed to authorise individual creators from within the community, to own and/or exercise rights in trust for the community or enter into benefit sharing agreements with the community. The principles embodied in the legislation must address the following:

1. The traditional knowledge rights must not expire; and this protection must consequently be indefinite;

2. Community rights should be retroactive, with a grace period to allow unauthorised users of community traditional knowledge to enter into benefit‐sharing agreements with the communities; and

3. Protection of traditional knowledge internationally must be preserved by legislating that indigenous and local communities may seek protection and enforcement of their rights in Jamaica, regardless of where the knowledge is being misappropriated.

Public and private assistance must be given to the communities to train personnel and staff and empower their community organisations to administer community rights and the access and benefit sharing regime, including the establishment and administration of the regime for full disclosure, prior informed consent and benefit sharing in relation to Traditional Knowledge, according to community customs and traditions. Recommendation 21 ‐ The law must require effective consultation with indigenous and local communities. The law must:

1. require formal, structured and effective consultation with indigenous and local communities prior to declaring ‘protected areas’ under the Beach Control Act;

2. require effective consultation with indigenous and local communities prior to declaring areas as forest reserves, protected areas, or forest management areas under the Forest Act; and

3. require effective consultation with indigenous and local communities prior to any decision or act which may affect those communities.

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Section 5 ‐ Jamaica Memory Bank

Recommendation 22 ‐ An individual or community granting any rights in any interview, performances, images, recordings and the like, must be registered to receive a share of the fees or other benefits derived from access to the material in the JMB. Consent from individuals, and indigenous or local communities from whom traditional knowledge held in the JMB is obtained, must be secured in writing or by audiovisual recording. A clear policy as to how consent is secured from all persons and communities from which traditional knowledge is obtained and stored by JMB, must be clearly established, so as to facilitate appropriate benefit sharing. This may be either a standard share out of the total fees collected and/or a share according to the particular item of material accessed that was provided by the individual or community. Persons who come to the ACIJ/JMB to access the material in the JMB, must be required to complete a standard form in which they disclose the purpose(s) of the required access (whether commercial or academic), with full details of the research, including contact information etc. The person who requests access must be required to sign a benefit sharing agreement wherein he or she agrees to:

1. if the purpose is research/educational, the nature of non‐monetary benefits to accrue to ACIJ/JMB such as a copy of the eventual research outcomes; or

2. if the purpose is commercial, the nature of monetary benefits including share of rights etc, to accrue to ACIJ/JMB.

ACIJ/JMB must be responsible to ensure that the individuals or communities, who provided the ACIJ/JMB with information and material, share in the benefits from ACIJ/JMB granting access to such information or material. The benefit sharing agreements that are to be concluded between members of the public and the ACIJ/JMB must be standardised through the Jamaica Intellectual Property Office. Recommendation 23 ‐ An inventory must be done of the material in the JMB to detail and ascertain what percentage of it relates to or is derived from each indigenous and local community and individual. The inventory must be done to facilitate the appropriate and transparent remit of any share of benefits due to an individual, or an indigenous or local community, from use of traditional knowledge held in the JMB. Recommendation 24 ‐ The JMB must not be used as a public database for the purpose of defensive disclosure for use by patent examiners in patent applications.

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The JMB should be maintained as a resource primarily for students and researchers but should not be considered as placing communities’ traditional knowledge in the public domain.

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CLOSING REMARKS

This Report has sought to assess the state of Jamaica’s compliance with the Convention on Biological Diversity as at May 2010. It has assessed the state of environmental law and intellectual property law in Jamaica as it relates to access and benefit sharing as required by the CBD. The Report has outlined the main challenges facing Jamaica in that regard as well as the main factors for success. The recommendations made above represent an attempt to inform and fast track the process to compliance with the Convention and to sustain our biodiversity. It is now left to the various stakeholders to move with appropriate despatch to implement the recommendations in stages, as we seek to protect Jamaica’s rapidly disappearing biodiversity, with its associated genetic resources and traditional knowledge. Genetic resources and traditional knowledge are continuously being managed by the many indigenous and local communities in Jamaica. This knowledge must be preserved for the greater good of us all and must be harnessed in a sustainable manner which brings fair and equitable benefits to those who are the primary keepers of the resources and the knowledge, and to the nation at large.

ATTACHMENT 1‐ HIGH LEVEL IMPLEMENTATION PLAN

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This Implementation Plan has been prepared based on the major recommendations in the Report and on the assumption that it will take considerable yet indefinite time to organise broad consultations on the Report, achieve consensus on the way forward, and secure funding to commence implementation. In this regard, broad timelines have been used. The assumed start date of activities is March 2010. The Plan will need to be re‐examined after the Report has been reviewed and implementation agreed by the main stakeholders. Activity Duration Target for

Completion Responsible Organisation

Indicator of Achievement

Remarks

1. Organise broad consultations on the Report Prepare copies of the Report and circulate to all stakeholders

1 mth 2nd Quarter 2010

OPM, NEPA Copies circulated Stakeholders should include relevant government Ministries, Departments, Agencies, as well as non‐government organisations, private individuals, researchers and academic centres, and indigenous and local communities

Schedule and host a series of meetings island wide with all stakeholders

4 mths 3rd Quarter 2010

OPM Island wide meetings held

The purpose of the meetings should be to obtain specific feedback to recommendations from the Report and suggestions regarding the most appropriate way of implementation

2. Secure Appropriate Funding for Implementation of the Plan Identify, prepare and submit funding proposals to support implementation of the Plan

3 mths. 2nd Quarter 2010

OPM, NEPA, IOJ Proposals submitted to potential funders

Potential funders should be private, governmental, inter‐governmental and non‐governmental

3. Reform relevant laws Create policy document to explain decisions on scope of law

6 mths 4th Quarter 2010

OPM Policy document prepared

This would include deciding on the focal point for CBD, the structure and operations of the ABS procedures, and the specific clauses of the legal regime that is decided should be legislated

Draft amended environmental laws or new Biodiversity Law

4 mths 1st Quarter 2011

OPM, NEPA, MOA, JIPO

Draft amended environmental laws or new Biodiversity Law drafted

ATTACHMENT 1‐ HIGH LEVEL IMPLEMENTATION PLAN

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Indicator of Achievement

Remarks

Draft amended intellectual property laws and new Community Intellectual Property Rights and Traditional Knowledge Act


JIPO

Amended intellectual property laws and new law drafted

Organise consultations and invite comments on Draft Laws

2 mths 2nd Quarter 2011

OPM, JIPO Consultations and comments invited

Request and receive legal opinion from Attorney General


OPM, JIPO AG’s opinion obtained

Request Parliamentary Counsel to appoint draftsman


OPM Draftsman appointed

Prepare Bills for Parliament


Parliamentary Counsel

Bills prepared

Submit Bills to Parliament 1 mth 4th Quarter 2011

OPM Bills submitted to Parliament

4. Conduct CBD training regarding ABS procedures Prepare training schedules and budget


OPM Schedules and budget prepared

Identify suitably qualified experts to conduct training

1 mth 1st Quarter 2011

OPM Experts identified Experts to do training could be local and/or from overseas and should include environmentalists, researchers, and lawyers

Prepare training manuals 3 mths 2nd Quarter 2011

OPM, NEPA Training manuals prepared

Organise and conduct island wide training workshops


OPM, NEPA Workshops held Participants should include relevant government Ministries, Departments, Agencies, as well as non‐government organisations, private individuals, researchers and academic centres, and indigenous and local communities

ATTACHMENT 2 Bibliography

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Afro‐Caribbean Institute of Jamaica Pamphlet, 2008 Karl Aiken, Andre Kong, Stephen Smikle, Richard Appledoorn, George Warner, Managing Jamaica’s Queen Conch Resources, 2006 http://www.jamaicachm.org.jm/Article/October2006.asp Susan Perkoff Bass and Manuel Ruiz Muller (Ed.), Protecting Biodiversity: National Laws Regulating Access to Genetic Resources in the Americas, International Development Research Centre, Canada, 2000 Martha Chouchena‐Rojas, Manuel Ruiz Miller, David Vivas and Sebastian Winkler (Ed.), Disclosure Requirements: Ensuring mutual supportiveness between the WTO TRIPS Agreement and the CBD, International Union for Conservation of Nature and Natural Resources, International Centre for Trade and Sustainable Development, Centre for International Environmental Law, Institut du developpement durable et des relations inteernationales and Quakers United Nations Office, 2005 Carlos M. Correa, Elements of an International Regime for the Recognition of National Regulations on Access to Genetic Resources, United Nations Conference on Trade and Development, New York and Geneva, 2008 Jonathan Curci, The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property, Cambridge University Press, UK, 2010 Dianne Daley and Nicole Foga, ‘Jamaica: Beyond the TRIPs Agreement’, at http://www.managingip.com/Article.aspx?ArticleID=1450368 Kathryn Garforth and Jorge Cabrera, Sustainable Biodiversity Law: Global Access, Local Benefits, The Centre for International Sustainable Development Law, Canada, 2003 Marcus Goffe, Protecting the Traditions of the Maroons and Rastafari: An Analysis of the Adequacy of the Intellectual Property Laws of Jamaica and Proposals for Reform, (2009) 6:3 SCRIPTed 575, December 2009, http://www.law.ed.ac.uk/ahrc/script‐ed/vol6‐3/goffe.asp David Greer and Brian Harvey, Blue Genes: Sharing and Conserving the World’s Aquatic Biodiversity, Earthscan/IDRC, 2004, http://www.idrc.ca/en/ev‐64749‐201‐1‐DO_TOPIC.html Stephen A. Hansen and Justin Fleet, Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property, in Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices, Krattiger, Mahoney, Nielsen at al (Ed.), Oxford, UK, and PIPRA, USA, 2007

ATTACHMENT 2 Bibliography

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Bernard Jankee, Policy Objectives for the Protection of Traditonal Knowledge, Folklore/Traditional Cultural Expressions and Genetic Resources in the Caribbean – the Role of Government (unpublished) T Janke, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (2003), at 64, http://www.wipo.int/tk/en/studies/cultural/minding‐culture/studies/finalstudy.pdf Wendy A. Lee, Perceived Costs And Benefits Of Bio‐Prospecting In Jamaica: Results Of A Stakeholder Survey For The International Cooperative Biodiversity Group Muriel Lightbourne, Food Security, Biological Diversity and Intellectual Property Rights, Ashgate Publishing, UK, 2009 S. Mitchell and M. Ahmad, A Review of Medicinal Plant Research at the University of the West Indies, Jamaica, 1948 – 2001, West Indian Medical Journal, 2006; 55(4): 243 Djims Milius, Justifying intellectual property in traditional knowledge, Intellectual Property Quarterly, 2009:185 National Environmental and Planning Agency, National Strategy and Action Plan on Biological Diversity in Jamaica, 2003 Secretariat of the Convention on Biological Diversity, Access and Benefit‐sharing In Practice; Trends In Partnerships across Sectors, Technical Series No. 38, Canada, 2008 Stephanie Theile, Queen Conch Fisheries and their Management in the Caribbean, Traffic Europe, 2001 www.traffic.org/speciesreports/traffic_species_invertebrates5.pdf World Intellectual Property Organization, Technical Study on Patent Disclosure Requirements Related to Genetic Resources and Traditional Knowledge, Geneva, 2004 Werner Zips, Laws in Competition: Traditional Maroon Authorities within Legal Pluralism in Jamaica, 37&38 Journal of Legal Pluralism and Unofficial Law, 1996

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Chapter 4 Assessment of Capacity and Needs for Taxonomic Research


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Assessment of Capacity and Needs for Taxonomic Research

Dayne Buddo PhD

April 2010

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Section 1 Introduction

Taxonomy is the science of naming living organisms. The relation of one individual as a similar species to another individual depends on similarities in external morphology, internal anatomy and genetic composition. Individuals deemed to belong to the same species would exhibit similar physiology, ecology and fecundity, and would have the capacity to mate with each other producing viable offspring. Conservation of biological diversity is often focussed on the ecological status of species, especially the endemic, endangered and rare species. Taxonomy therefore, would play an integral role in first identifying the species located in a particular area to inform conservation of that species or conservation of the habitat of the species. Therefore the first step to conservation is the determination of the species present in an area to deem that area necessary for conservation. The importance of islands in biodiversity conservation has been underscored in the Convention on Biological Diversity (CBD). Islands, especially Jamaica, have shown a high level of endemism as species found on islands are often not found anywhere else in the world. Geographic isolation over millions of years has led to increased evolutionary divergence and increased speciation. The rate of increase in knowledge in taxonomy is likely to lead to increased discoveries of new species, and perhaps more species of important ecological significance requiring conservation. The objectives of this assessment of taxonomic knowledge are to identify the current strengths and weaknesses in taxonomic knowledge in Jamaica for both individuals and institutions, and recommend practical solutions to address the gaps. Relevance to the CBD was a constant feature of this review. Elements of the task included:

Define the needs for taxonomic capacity and research

Assess the strengths and weaknesses and capacity needs for individuals involved in taxonomy

Assess the strengths and weaknesses and capacity needs for institutions involved in taxonomy

Identify the gaps in taxonomic research along with the steps to meet the technical capacity requirements

Define programmes which need to be established in order to monitor the status of selected and/or designated species and environmental areas

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Investigate and propose best practices for local implementation of suitable practices, based on current international standards or procedures

The Approach and Methodology used in the assessment was designed to capture all the pertinent information in a participatory manner. Pertinent documents and other literature were reviewed including the CBD and associated documents, National Biodiversity Strategy and Action Plan, National Ecological Gap Assessment Report, among others. A questionnaire was developed which covered the thematic areas; Agency and their Research Programmes, Human Resources and Information Management. The questionnaire has been included as Attachment 1 of this report. One‐on‐one interviews were conducted with most of the selected major stakeholders involved in taxonomic research and/or management of taxonomic records. These interviews were conducted in order to identify work being done and to ensure representation of the various natural realms and groups directly related to their work. During the interviews the questionnaires were used as a guide. Identification of Needs, Gaps and Mechanisms to fill the gaps was done, and preliminary findings and recommendations were presented to the wider stakeholder groups who attended the island wide meetings held in order to obtain input and feedback. This list of stakeholders consulted comprised:

University of the West Indies (Mona), Department of Life Sciences

o Herbarium: Both the Curator and the PhD Researcher were interviewed to assess the level of involvement of the UWI Herbarium in taxonomic research, research projects by the Herbarium, extent of taxonomic collections, interfaces with other herbaria, and technical and institutional capacity of the herbarium.

o Dr. Mona Webber: Marine Ecology

o Professor Phyllis Coates‐Beckford: Plant Pathology (Nematology and Mycology)

o Dr. Katherine Murphy and Dr. Eric Garraway: Entomology

o Dr. Karl Aiken: Fisheries

Institute of Jamaica, Natural History Museum of Jamaica: The Director, Zoologists and Botanists, and the Clearing House Mechanism (CHM) Focal Point (by email) were interviewed to assess the extent of the botanical and zoological collections.

National Environment and Planning Agency: Representatives from the Ecosystems Management Branch including the Manager. These persons were interviewed to assess the required needs for taxonomic knowledge to manage the resources, the capacity in the agency and the national linkages with the CBD.

The Forestry Department: The Conservator of Forests was interviewed to assess the capacity in taxonomic knowledge of the Forestry Department and the needs of the department.

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The Fisheries Division: The Fisheries Officer acting in the capacity of Data Manager was interviewed to assess the level of fisheries data possessed by the Fisheries Division and the use of the data in fisheries management.

The personnel of the CMS and CCDC were consulted on numerous occasions prior to this project, and documentation on their function and capacity in taxonomy available for review.

The personnel of the JCDT were consulted on numerous occasions prior to this project, and documentation on their function and capacity in taxonomy available for review.

The Nature Conservancy

The individuals not interviewed included:

Windsor Research Centre: Conflict with time availability

Other Staff at DLS: Conflict with time availability due to teaching and examination duties of the researchers. These included Dr. Eric Hyslop, Dr. Kurt McLaren, and Dr. Byron Wilson.

NCU: Conflict with time availability due to teaching and examination duties of the faculty

BirdLife International: Consulted only at Kingston Workshop, but representative did not produce any new or additional inputs

National Arboretum: Consulted only at Kingston Workshop, but representative did not produce any new or additional inputs

Montego Bay Marine Park: Conflict with time availability, and in addition, lack of experience of new Manager to address questions via phone or email.

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Section 2 ‐ The Ideal Situation for Taxonomic Knowledge

Jamaica has a rich biodiversity and the high rate of endemism (ranked 5th in the world for endemism) which is a characteristic of many islands. The need for effective and coordinated approaches to taxonomic research is consequently significant and provides a very important foundation for all biodiversity assessments or conservation planning. The need for taxonomic knowledge in Jamaica has been highlighted in the National Biodiversity Strategy and Action Plan (NBSAP) as one of the major gaps and challenges affecting the conservation and sustainable use of Jamaica’s biodiversity.

“Overcoming gaps in knowledge of the ecology, taxonomy and systematics, and status of species, and overcoming gaps in capacity for these …”

Depicted as Goal 5: Enhance Resource Management Capacity, within the NBSAP, the objective is, “To increase the number of trained personnel in conservation, biodiversity, taxonomy, biotechnology and genetics”. The rationale is that “Graduate training is required to increase the number of dedicated specialists, especially in some areas where no national specialist now exists”. This document also cites the need to identify training programmes locally and/or overseas to address the gaps in knowledge among institutions and agencies, as well as community based and environmental non‐governmental organizations. This section outlines the national needs in taxonomic knowledge to meet the required objectives under the Convention on Biological Diversity (CBD) and is done in context of the Jamaican situation. These needs cover the:

1. Agency and research programmes,

2. Human resources, and

3. Information management.

2.1 Agency and Research Programmes There are numerous agencies that are involved in biodiversity conservation in Jamaica. These include government, non‐government and academic entities spread across Jamaica. There is no central coordination or clearing house for taxonomic work being planned or after it is completed. Without such a Coordinating Body, the natural result has been overlap in the geographical area and the scope of work of these entities, and neglect of others. This fact underscores the importance of coordination of the programmes of work. Generation and management of taxonomic records are essential for all scientific studies of the environment or biodiversity and provide the basis for justification of any biodiversity

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conservation programmes. These records may take the form of actual specimens, species lists or digitised specimen records with the associated taxonomic classifications for each record. A critical step in this process is the accessioning of these records using the correct taxonomic characteristics of the specimen which will avoid mistakes in future identification of species. The coordination of specimen collections and subsequent accession of these specimens is important to ensure adequate representation of the natural biodiversity of Jamaica within these collections. Collection programmes in Jamaica require coordination with respect to geographical areas as well as taxonomic groups. Such programmes should be firmly entrenched into the work programmes of these entities and must be accompanied by the requisite budgetary allocations, field resources and staff. This is the only way to enable consistent collections and taxonomic research in Jamaica, rather than be confined to the time frame or scope of a particular project, donor or interested external party. The research agenda for any entity in Jamaica should be focussed on meeting the needs of the country. Therefore, the agenda in taxonomic research should be driven by gaps in taxonomic knowledge as they pertain to biodiversity conservation. It is clear from the assessments done that some areas in Jamaica are not given adequate attention such as the Cockpit Country, Pedro and Morant Cays, Dolphin Head Mountains, the majority of Jamaica’s Rivers and others (NEGAR, 2008) for a variety of reasons. Some of these reasons include accessibility to the location, costs for transportation, lack of expertise to study the area, intellectual interest in the area among other reasons. On the other hand the unplanned approach results in some areas being studied in far more detail and with greater frequency than other areas. A mechanism of regular dialogue among entities is needed in the country to guide the research agendas as well as to inform on the areas of research. Research programmes should be able to demonstrate relevance to biodiversity conservation in Jamaica. In the recently concluded National Ecological Gap Assessment for the Protected Areas System Master Plan (NEGAR, 2008), the lack of taxonomic data formed a limiting factor in the assessment. Also, some areas of Jamaica were in significant need of better biodiversity information. These, and other documents including the TNC Ecoregional Plan and NBSAP, should be used to guide the research agendas of the entities. A mechanism to document the research being done in taxonomy is required on a national scale. It is required that this mechanism be dynamic, accessible, accurate and routinely updated. This would also be beneficial to funding agencies in addition to research entities. A strong link to the CBD Portal for biodiversity information would also prove useful. Naturally, protocols for access to information, especially sensitive information, are required. However, at a high level in terms of the type of research being done, the geographical areas being considered and the planned outputs are valuable for planning and should be available (preferably via the internet) to all interested parties.

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2.2 Human Resources Taxonomy is a very specialized science, requiring uniquely honed skills and training over a number of years. This science is, on the one hand, focussed on being able to identify and accurately assign a name to those species of plants and animals found in the field; and which had previously been found and have a valid published description. However the greater level of skills are required to determine when species new to science have been collected; and the associated discipline and process required to properly describe and publish these new species and then to also ensure that the international scientific community has access to this data. The vast spectrum of species requires specialists within almost each major taxonomic group to be fully confident that the taxonomic knowledge in Jamaica is adequately covered. It is necessary, in Jamaica, to develop academic training programmes in taxonomy at the tertiary level. These programmes should be designed in a coordinated and participatory manner to ensure a high standard and reduce duplication of effort. More intensive post‐graduate programmes are needed in the country to further the development of skills in the science while filling gaps in taxonomic knowledge in Jamaica. Short courses and exchange programmes would also be needed to supplement knowledge in some taxonomic groups. Periodic review of the technical capacity in taxonomy is necessary in entities in Jamaica. There is need for a proactive approach to ensuring that the full cadre of technical expertise exists in the country. Upgrade of skills of existing staff is necessary in a dynamic manner to ensure that the capacity in taxonomic knowledge is continuously improving. 2.3 Information Management Information management of taxonomic records comprises the collection, identification, accession, storage and access. The quality of the information system hinges on the quality and effectiveness of all these components as well as the ability for the system to be dynamic to reflect current national needs. It is necessary to have a national body to coordinate the information management programme. This body does not need to have an active role in any of the specific elements, but should be cognisant of the value of taxonomic knowledge and the role it plays in biodiversity conservation. The development of comprehensive and accessible collections of taxonomic records is needed to adequately support research and conservation of Jamaican biodiversity. These collections are required to be accessible on a web‐based portal to enable convenient and timely use of information. It would also be useful to have digitised herbarium records and zoological specimens available through this web‐based solution, as opposed to only having metadata on the specimens. This would be more useful in the identification of the unknown species.

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A policy for access to taxonomic records and information is required to ensure security of specimens as well as protect sensitive information that may affect conservation of certain species or ecosystems. Various levels of access should be critical to this system so that the taxonomic records benefit conservation in a controlled manner. A competent national body would then be responsible with appropriate legislation to implement and enforce this policy. A key element to taxonomy is a system of dichotomous and polychotomous keys. These are used to identify unknown species. There is a need to make these keys readily available to all persons who are working in conservation of biodiversity. The information system can make these keys available and served through a web‐based portal. This is the case with the World Biodiversity Database and the Global Biodiversity Information Network. Collection of species information from field research is required. A system is needed to extract information from scientific reports to be added to the information system. This information should go through a system of validation before it is added to the system and made available.

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Section 3 Major Findings: Resource and Capacity Assessment

These major findings are based on the interviews conducted with the persons and entities described in Section 1.0, as well as through the review of relevant literature. 3.1 The Institute of Jamaica – Natural History Museum of Jamaica (NHMJ) The NHMJ is responsible for the collection and management of the island’s botanical and zoological specimens. It is the repository for Jamaica’s natural history and serves to promote and facilitate research and education on Jamaica’s biodiversity. The NHMJ has a programme in place that is embedded in their Corporate and Operational Plans to collect specimens and manage taxonomic records according to prescribed standards for conservation of records. There are currently botanical and zoological collections present in the NHMJ. The Herbarium consists of over 130,000 specimens (see Table 1 below) covering most of the major plant groups found in Jamaica. The zoological collections comprise approximately 110,000 specimens (Table 2 below). There is currently a programme to digitize the botanical collections, making the taxonomic records easier to access and share locally and overseas. The zoological collections metadata are also being digitally formatted. Table 1: Breakdown of Botanical Collections at NHMJ (IOJ)

Groups Estimated Numbers Spermatophyta 90,000 Pteridophyta 24,000 Algae 8,000 Lichens 2,000 Fungi 6,000 TOTAL 130,000

Table 2: Breakdown of Zoological Collections at the NHMJ (IOJ)

Specimen Type Estimated Numbers Echinoderms 1318 Annelids 420 Reptiles 720 Tunicates 125 Amphibia 800 Mammalia 400 Coelenterates 1800 Aves 463

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Specimen Type Estimated Numbers Crustacea 1050 Pisces 5000 Lepidoptera 8000 Diptera 6500 Coleoptera 13000 Porifera 200 Homoptera 6400 Orthoptera 500 Odonata 2000 Slides 1400 Eggs 100 Molluscs (marine) 35000 Molluscs (land) 20000 Arachnida 5000 TOTAL 110,196 NB: Estimates based on complete inventory conducted in 1986 as well as Specimen counts from the computer database up to 2009.

The NHMJ is closely involved with the CBD as the host of the Jamaica Clearing‐House Mechanism (JACHM). This is the island’s biodiversity information network and it also has links with other taxonomic databases which provide information on species present in many countries. The JACHM also hosts the database for invasive alien species (IAS) through the Inter‐American Biodiversity Information Network (IABIN) – I3N Jamaica Programme. This database of invasive alien species for Jamaica was recently updated (in 2007) to encompass all known IAS in Jamaica, and now hold over 80 records for Jamaica. These records comprise taxonomic information on the species as well as distribution and management information. The NHMJ is currently conducting several projects focussed on taxonomic research in Jamaica, and has also conducted other projects in the last ten (10) years. These are listed below:

1. Endemic Trees of Jamaica: Funded by the Environmental Foundation of Jamaica (EFJ) examines the taxonomy, distribution, and uses of endemic trees in Jamaica to promote best practices and conservation. There are over 350 tree species covered in this project which is near completion. A Technical Report and a Field Guide will be produced.

2. Ongoing accession of zoological taxonomic records into Biolink® and FishBase®. These are two of the main zoological cataloguing mechanisms currently in use. Biolink® is a biological database that supports primary species information, as well as research findings and resource persons. FishBase® is a global Information System

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on fishes, which allows users to search for primary species data, as well as larval fish data and food web information.

3. Cockpit Country Conservation Strategy: Conservation of Cockpit Country, using biota to define the boundaries of the Cockpit Country and document new species found. A Technical Report will be produced.

4. Bird Survey of Mason River Reserve: Funded by the Environmental Foundation of Jamaica (EFJ) in 2003 examined the diversity of avifauna in the Mason River Reserve. This Reserve is also home to one of the NHMJ’s field stations. A Technical Report was produced and can be accessed through the JACHM.

5. Lost Species in Cockpit Country: This project aims to rediscover species from the Cockpit County that have not been described for a very long period of time, and are feared extinct.

6. Jamaica Clearing‐House Mechanism (JACHM): Developed in accordance with the CBD, this programme has seen the development of a very dynamic biodiversity information network of websites, databases, institutions and people within Jamaica as well as throughout the party countries to the CBD.

7. Invasive Fern in Mason River: This project examined the removal of the invasive fern Dicranopteris sp. from the Mason River Reserve to promote the colonization of native species. A Technical Report was produced.

The Research Agenda for the NHMJ is set based on taxonomic gaps in collections, gaps in knowledge of particular taxonomic groups or geographical areas as well as current and impending projects. These gaps are identified based on the requests by external agencies and persons for taxonomic records. For the most part, this agenda is set by the NHMJ. Taxonomic research by the NHMJ is concentrated in the following areas, which has been driven by the research agenda and availability of resources:

1. Mason River

2. Green Hills

3. Cockpit Country

4. Around the Central Inlier (Harris Savannah etc)

5. John Crow Mountains

6. Braziletto Mountains

7. Fresh River

8. St. Thomas

Research in the following taxonomic areas has been identified by the NHMJ as critically needed nationally, and the Museum will aim to target these in future projects.

1. Lower Plants

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2. Aquatic Plants

3. Ferns

4. Mites

5. Soil organisms

6. Threatened groups (orchids, palms, marine mammals, cycads, and bromeliads)

Other needs identified were training in:

1. Molecular taxonomy

2. Identification of Juvenile birds

There are currently six (6) staff members that are involved in taxonomic research at varying levels within the NHMJ. Four (4) of the six (6) have received scientific training at the tertiary level. Their skills have been improving significantly mainly due to on‐the‐job training and periodic training courses on specific areas such as entomology and botany. The percentage of the work effort spent on taxonomic research is estimated to be as low as 20% and as high as 80% among these staff members. The low levels are due to other tasks, such as day‐to‐day administration, which have been assigned to the scientific specialists. One of the two experts listed for Jamaica on World Taxonomist Database, The Director of the NHMJ, currently only spends about 20% of her effort in taxonomy, as the remaining 80% is spent in administration of the NHMJ. This disparity is not unique to the NHMJ as often taxonomic scientists are obligated to take on administrative roles which become greater roles than their scientific role. The strength of taxonomic knowledge varies significantly, and is concentrated in Flowering Plants and Entomology. The main weaknesses exist in the areas of Molecular Systematics, Marine Flora and Fauna, Phylogeny and Lower Plants. 3.1.1 The Jamaica Clearing‐House Mechanism (The JA CHM) The JA CHM is the island’s biodiversity information network. It was established in accordance with Article 18(3) of the Convention on Biological Diversity (CBD). It supports the National Biodiversity Strategy and Action Plan. The JA CHM receives ad supplies information through a variety of requests, from sources both locally and internationally. Though the JA CHM does not generate taxonomic information, it is responsible for the dissemination of such information. Species information is held by the JA CHM as species lists, and the information is available through the internet. This database is also linked to other web‐based portals involved in biodiversity such as the Inter‐American Biodiversity Information Network (IABIN). There is an online alien invasive species database for Jamaica as part of the IABIN Alien Invasive Species Information Network (IABIN I3N) programme. This database requires taxonomic names and classification for the species in the database.

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In the Jamaica I3N database, the list of available species is based on ITIS ‐ Integrated Taxonomic Information System, which is an internationally recognized system. The JA CHM currently has lists for endemic species. However, these lists are only limited to Endemic Birds, Butterflies and Orchids. 3.2 The Department of Life Sciences (DLS) – UWI Mona The Department of Life Sciences (UWI‐Mona) represent the section of the University dedicated to the biological sciences. The DLS covers areas of botanical and zoological studies spanning the terrestrial, freshwater and marine environments. The DLS is also involved in conservation management and agricultural applications. 3.2.1 The UWI Herbarium The main repository of floral taxonomic information in the DLS is the Plant Herbarium. The herbarium both generates and stores taxonomic information. The quantity of specimens represented here are less than those of the NHMJ Herbarium. There are over 35,000 specimens covering Gymnosperms, Angiosperms and Pteridophytes which are represented by approximately 609 species; 3,000 specimens of Angiosperms belonging to 183 Angiosperm families and approximately 30 species belonging to 4 families of Gymnosperms. These collections not only include specimens from Jamaica, but also several countries throughout the wider Caribbean Region. Though the DLS and the Herbarium are not directly linked with the CBD, they provide useful support to the national commitments under the CBD, especially in biodiversity research. Past projects that the herbarium was integrally involved include:

2007: Herbal Plants of Jamaica‐Monica Warner

2004: Flowers of Jamaica‐Monica Warner

2003: Manual of Dendrology, Tracey Parker for the Forestry Department

2002: A Guide to Plants in the Blue Mountains of Jamaica ‐ Susan Iremonger

1985: Ferns of Jamaica‐George Proctor

1972: Flowering Plants of Jamaica, CD Adams

One of the major taxonomic projects conducted by the DLS (just recently completed) was “Digitising Jamaica’s Natural Botanical History Collections”. This is being done by Ph.D. Candidate, Philip Rose of the DLS. This project is being done in partnership with the Institute of Jamaica – Natural History Museum with funding from the Environmental Foundation of Jamaica. It focuses on both herbaria using ten (10) plant families common in the tropics, from two (2) collectors who have and are collecting specimens (Harris 1800s‐1915 collection at UWI; Proctor 1950’s‐present at NHMJ). Approximately sixteen hundred (1600) specimens from DLS

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Herbarium and one thousand (1000) specimens from NHMJ Herbarium were digitised. The Jamaican Virtual Herbarium is based on the WAMP web page/database software application stack that integrates the Windows operating system, Apache web server, MySQL database server and PHP Hypertext Pre‐processor into presenting a web‐based interface that handles both back‐end data entry and end‐user database queries (source: Rose, pers. comm. & Ph.D. Project Outline document). This EFJ Funded Pilot Project is complete; however, the methodology and principles of digitisation of botanical collections have been entrenched in the NHMJ and DLS Herbaria. Both herbaria are set to continue the transformation of the specimen records into digital formats. This process is anticipated by both institutions to be ongoing. The research agenda for the DLS‐Herbarium is largely based on external national and international requests for research purposes. There is currently no research programme or dedicated researcher as yet for the herbarium and primarily, the herbarium provides support in the field for researchers. The DLS currently has plans to introduce a dedicated researcher for the Herbarium, but this has not materialized to date. Once this is in place however, the herbarium would have its own research programme. There are no limitations for the herbarium to be involved in taxonomic research with respect to location, as research is conducted all across the island as well as in other countries. It was cited by the DLS Herbarium that for the most part, the research agenda for the herbarium fills the national needs. However, some taxonomic groups of plants are understudied. These include ferns, gymnosperms and other lower plants. More research is also needed for freshwater and marine plants. There are some areas in Jamaica that require more taxonomic research. These include, in priority sequence, the Cockpit Country, John Crow Mountains, Hellshire Hills and Dolphin Head Mountains. There are two (2) persons who work closely with the herbarium. One is the herbarium curator and the other is a PhD student who is close to the end of his graduate programme and is responsible for the Digitisation of the Herbarium Project. The range of formal training varies from specific courses at the University level to post‐graduate training in botany to the PhD level. Numerous courses have contributed to the on‐the‐job training. These courses include Smithsonian Institution Training Course for Herbarium Employees, Monocot Flora of Puerto Rico – Smithsonian Institution, Kew Workshop on Herbarium management and techniques and Tropical Flowering Plants course‐Fairchild Tropical Botanic Gardens. On‐the‐job experience has been vastly important, as the knowledge gained from conducting research and serving the needs of scientists has been greater than the knowledge gained from the training courses. These courses, though useful, are short courses and tend to have very direct areas of focus. Training in grasses, ferns and desktop research techniques are areas identified by the staff which constitute major weaknesses in their technical capacity. 3.2.2 Marine Taxonomy

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Dr. Mona Webber, Senior Lecturer in the Department of Life Sciences is one of the main marine researchers within the Department of Life Sciences. According to Dr. M. Webber, the epifauna (aquatic animals that live on the bottom substratum) is reasonably well understood as research in this area has been sustained over the years. Meiofauna (size class between microfauna and macrofauna which tends to be the ~50‐500 µm size range) has been studied through the research of then graduate student Avery Galbraith. Mangrove biota is reasonably well known through work done mainly at the Port Royal Mangroves out of the Port Royal Marine Laboratory. Hard‐bottom fauna, such as coral and algae, are also well studied and understood. With respect to Sponges, taxonomic work has been done on mangrove sponges using spicules, and a photographic guide was developed. This guide can be used for future taxonomic work in mangrove sponges. However, reef sponges are poorly known. Nudibranchs are also poorly understood. Research done in this area in the past has been limited to brief descriptions, but the taxonomic range of species on Jamaica has not been the focus of any research project. Phytoplankton and Zooplankton taxonomy is perhaps the area that is mostly studied. There are also adequate reference collections of species that are used for both research and teaching. These reference collections are also supplemented with photos and taxonomic keys. Taxonomic knowledge in the Crustacean zooplankton is especially strong. Bryozoans in Kingston Harbour have been studied in depth. There is now a taxonomic key produced by Marcia Creary, and this is available for use. Reef bryozoans, however, is an area that requires more taxonomic work. Mangrove ascidians have been extensively studied and documented by Prof. Ivan Goodbody, especially from the Port Royal mangroves. There are also collections of these specimens at the Port Royal Marine Laboratory and the Department of Life Sciences. Other gaps in marine taxonomy include benthic macroinvertebrate infauna and jellyfishes. The former would serve pollution monitoring activities for port areas and urban bays, while the latter would be important in trophic interactions in fish stocks. Dr. Karl Aiken specialises in fisheries management, ecology and biology. The bony fishes, especially the commercially important groups such as snappers, parrotfishes, acanthurids, groupers, jacks and triggerfishes are well understood. There are no comprehensive fish collections; however, photographic and descriptive keys are readily available for assistance with taxonomy. One of the largest gaps in taxonomic knowledge in fishes is the larval groups. Currently, these specimens are only grouped as “larval fish”. Dr. Eric Hyslop is the primary fish biologist in the Department of Life Sciences. With respect to freshwater taxonomic knowledge, the macroinvertebrates require more attention. This is also a

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similar situation with freshwater phytoplankton and freshwater zooplankton. Freshwater fish, on the other hand, is reasonably well studied, including the development and availability of taxonomic keys and reference collections. 3.2.3 Plant Mycology and Nematology Professor Phyllis Coates‐Beckford is the Department’s expert on plant pathology, covering both the mycology and nematology realms in taxonomy. Prof. Coates Beckford has developed expertise to identify most of the plant parasites, but only as far as the genus level. There are associates that are used as taxonomic experts on occasions, and these include:

Dave Hutton – plant parasites (mainly nematodes)

Kadene Williams – Plant nematodes

Ministry of Agriculture, Bodles Research Station – fungi and nematodes that are parasitic to agricultural plants (3 Officers)

Trevor Yee ‐ Mushroom taxonomy

With respect to gaps in free‐living nematodes in the soil, very little is known about their taxonomy. There are keys developed for the temperate and some tropical areas that may be applicable to Jamaica, but this has not been explored. It is opinion of the Prof. Coates‐Beckford that it would be a worthwhile task to develop keys for soil nematodes in Jamaica, first examining the applicability of the international keys. Currently there are no collections of nematode species, and this would be beneficial to taxonomic work on the group. Soil fungi are not adequately described. Overall, research on fungi has been focussed on those that affect agricultural crops. Currently there are no collections of fungal species, and this would be beneficial to taxonomic work on the group. Courses in Nematology and Mycology have been under‐subscribed over the years, and even lead to the removal of these kinds of courses from the teaching roster of the department. More recently, the courses have shown a return to the desired subscription level, and Prof. Coates‐Beckford attributes this to a drastic increase in the number of students overall in Life Sciences. This short‐fall in undergraduates being taught the disciplines has also impacted on the level of graduate research in the disciplines. Training is required in molecular taxonomy of fungi and nematodes to complement the limited morphological taxonomic expertise. This would provide faster methods to identifying the species. Training courses for Jamaican scientists are available in the United States, more specifically, those hosted by the University of North Carolina, Cornell University and University of Florida.

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3.2.4 Entomology Entomology in the Department of Life Sciences is led by Dr. Eric Garraway, with strong support from Dr. Catherine Murphy and Dr. Tanice Hall. This section houses a small insect collection. It comprises approximately 500 species representing especially members of the Lepidopteran Order. There is also a collection of approximately 100 land snails (mainly from eastern Jamaica). However, there are large quantities of specimens to be curated, which are mainly from undergraduate and graduate students’ field collections. The Research Agenda is set by Dr. Garraway with inputs from his aforementioned colleagues. Most of the agenda arises from needs for conservation studies that are encountered by other projects. He uses the pure research to feed the applied research. One such example is the pioneering work done on the Jamaica Swallowtail Butterfly. Taxonomic work in this discipline has been limited to Eastern Jamaica for the most part. There has been smaller number of projects in West End Negril and the Cockpit Country. Dr. Murphy cited transportation and safety in the field as main reasons for the limitations with localities for the research. Some of the taxonomic groups which have been under‐studied in Jamaica include Pyralidae (snout moths), Nocturidae, Caribidae (beetles), Pseudococcidae (mealy bugs) and the Homopterans. Many of these are pest species, and yet very little is currently known about their taxonomy. There are currently 3 lecturers in Entomology and 6 graduate students. 3.2.1 The Centre for Marine Sciences (CMS), Department of Life Sciences The CMS is responsible for marine research and training in the University. There are two marine laboratories that are under the Department, the Discovery Bay Marine Laboratory and Field Station (DBML) and the Port Royal Marine Laboratory (PRML). The DBML and the PRML support the scientific research for the UWI’s marine researchers primarily, but also international agencies and universities. These include Stony Brook University, Wisconsin University, Dartmouth University, University of Miami, Florida International University, National Oceanographic and Atmospheric Administration (NOAA), Mote Marine Lab among others. These relationships have fostered and encouraged meaningful research collaborations and have built technical capacity in Jamaica in marine research. Research has been concentrated in the general region of these marine laboratories over the years, but research in other parts of Jamaica such as Pedro Bank, Portland Bight, Morant Bay, Montego Bay and Negril have been done from the marine laboratories. The research agenda for these entities are determined by the mandate of the CMS and the DLS as they aim to provide

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scientific guidance to the national objectives. Relevance to the country has been a feature and will continue to be a feature of the research agenda of the CMS. Inputs for the research agenda of the CMS have been received from NEPA, Fisheries Division, Maritime Authority of Jamaica and the NGO community. These inputs allow the CMS to focus their research in areas of national needs. Dr. Dale Webber is an expert in marine phytoplankton. He has also coordinated training in this discipline through the research of graduate students. Currently, the CMS and the DLS have a total of five (5) researchers on staff that are experts in plankton taxonomy, both phytoplankton and zooplankton. 3.2.1.1 The Caribbean Coastal Data Centre (CCDC) The main repository for marine taxonomic information within the CMS is the Caribbean Coastal Data Centre (CCDC). The CCDC is located on the Mona Campus within the DLS and serves as the main data centre for the Centre for Marine Sciences. The CCDC was initially created in 1993 as the Data Centre for the Caribbean Coastal Marine Productivity (CARICOMP) Project, and then became the CCDC in 1998. It provides data archival support to various national and regional marine monitoring programs, such as Global Coral Reef Monitoring Network (GCRMN) and the Jamaica Coral Reef Monitoring Network (JCRMN). The CCDC deals with database creation and management and provides reports and summaries for marine data from these programmes and projects. These include: Caribbean Coastal Marine Productivity (CARICOMP)

Caribbean Planning for Adaptation to Climate Change (CPACC)

Mainstreaming Adaptation to Climate Change (MACC)

Atlantic and Gulf Rapid Reef Assessment (AGRRA)

Global Coral Reef Monitoring Network (GCRMN)

Reef Check®

Coral Disease Survey

Jamaica Coral Reef Monitoring Network (JCRMN)

Fish Survey Data

Jamaica Coastal Water Quality Improvement Project (CWIP)

The generation of taxonomic information on coral reefs is concentrated mainly on hard and soft corals, reef fish, sponges, shellfish and some other invertebrates. The localities covered are limited and restricted by several factors including accessibility and funding. However, there is a concentration of activities in areas where the marine research facilities (namely the Port Royal Marine Laboratory and the Discovery Bay Marine Laboratory and Field Station) are located. The

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other areas around Jamaica receive coverage due to the presence of environmental non‐governmental organizations. Figure 1 below shows the survey sites for AGRRA and Reef Check.

Figure 1: Sites for Reef Check (blue triangles) and AGRRA (red dots) (Creary, CCDC 2006) 3.3 The National Environment and Planning Agency (NEPA) NEPA generates small amounts of taxonomic information; however it has a heavy demand for taxonomic information to carry out its functions. NEPA does not keep taxonomic specimens, but keeps species distribution data which are usually georeferenced. This taxonomic information within NEPA is in the form of products of species surveys conducted by the Agency or by consultants, and the information is embedded in technical reports. The Agency is integrally involved in the CBD. It is responsible for projects implementation, preparation of the National Reports, participation at CBD meetings, Programme of Work for Invasive Alien Species and also the Focal Point for Access and Benefit Sharing. The focal point for Protected Areas also resides within NEPA. The Research Agenda of the Agency is driven by management and conservation goals. It generally aims to fill gaps in information to support conservation and management Plans for conservation areas. The NBSAP is also used to guide this process. Research is also done as an imperative for a development order and focus is given to areas where there is a concentration of impending development projects. This is especially important in processing of applications. One of the significant needs is to validate and collate species data that are currently part of Environmental Impact Assessments and other studies such as species surveys. This would assist in filling gaps in information as well as to provide greater input in classification of ecological status of species and locations.

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It was cited by NEPA that more attention should be paid to taxonomic research on grasses and herbs, insects (with the exception of butterflies), freshwater faunal species, and endemic flora and fauna generally. These are seen as areas where insufficient biological information is available, but where better information on these taxa would assist greatly in the design and implementation of conservation and management strategies. There are currently approximately eight (8) persons involved in some level of taxonomic research. These persons have received formal training to the post‐graduate levels as well as on‐the‐job training and experience. There is an equal spread of the persons between the terrestrial zoological (4) and marine realms (4), however, the botanical terrestrial realm is underrepresented and plant taxonomists are needed. A permanent freshwater taxonomist is also of urgent need within the agency. The most significant areas of taxonomic knowledge exist in coral reef species (reef fish, hard and soft coral, and algae), sea grasses, wetland flora and fauna, flora and fauna in dry limestone forests, avifauna, sea turtles, snakes, butterflies and bats. The greatest weaknesses in the NEPA exist in the areas of herbs and grasses, freshwater species, marine benthic macroinvertebrate infauna, ichtyoplankton and marine sponges. 3.4 The Ministry of Agriculture and Fisheries The main entities within the Ministry that have some mandate for conservation of biodiversity are the Forestry Department and the Fisheries Division. Both these entities do not focus on the generation of taxonomic information; however they are more responsible for the management of the resource through sustainable utilization. 3.4.1 The Forestry Department The Forestry Department generates taxonomic information on a limited and ad‐hoc basis. There is not a dedicated taxonomic research programme in place at the Forestry Department. There is heavy reliance on the resources of the IOJ and the UWI Herbaria for support. There is however, the desire by the Forestry Department to establish a small collection in the future. The reliance on the UWI‐DLS Herbarium and the IOJ‐NHMJ Herbarium would continue, as it is not deemed necessary to create a replicate of these herbaria. Research projects are generally done in collaboration with the IOJ and visiting researchers, who may require the support of the Forestry Department. There are very limited human resources in taxonomic research in the Forestry Department. Most of the focus by the scientific officers is placed on forestry management rather than the generation of new taxonomic information. The new design of the Department will see the introduction of specialized scientists in the field of arboriculture, ecology and biology. This would be the opportunity to implement a strong taxonomic research programme.

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Training programmes in botanical species are needed for the field staff. These programmes are not only to be limited to the tree species, but shrubs and lower plants as well. 3.4.2 The Fisheries Division The Fisheries Division’s focus is on commercial species, and marine taxonomic research outside of these commercial species is not an area of focus for the division. Fish surveys are carried out at 216 landing sites across the island. Information is collected on reef species, coastal pelagic species, large pelagic species, conch and lobster. These surveys are geared towards assessing the fishable stock of these species, and therefore information is limited to species that are removed by the fishers. There is a Fisheries Information System within the Fisheries Division. The mechanism to collect the data on the species is decentralized through the operation of field officers based at or near major fish landing sites across the island. The management of the fisheries data is done at the main office; however, this data is not readily available for use. There is a notable lack of confidence in the quality of the data collected, as species are sometimes misidentified. 3.5 The Non‐Governmental Organizations 3.5.1 The Nature Conservancy The Nature Conservancy (TNC) is a non‐profit US based environmental non‐governmental organization and has the reputation of being the largest such organization in the world. The Jamaica Programme focuses on projects in all three eco‐regions, terrestrial, freshwater and marine. These however, have significant variation in the emphasis that is placed on each. The Jamaica Programme is currently heavily biased towards ecosystem management rather than taxonomic research. Most of the programmes now are focussed on the marine environment with management of marine protected areas, not only in Jamaica, but regionally. TNC is involved in the CBD, especially as it relate to the Programme of Work on Protected Areas. There are currently three (3) scientific officers within TNC Jamaica:

1. Conservation Coordinator, Pedro Bank Management Project

Management of Pedro Bank Management Project

Establishment and Maintenance of Remote Field Station on Pedro Bank

2. Sustainable Waters Programme Manager

Main tasks includes the Marine Protected Areas Sustainable Financing Project (OECS/World Bank/TNC)

3. Jamaica Country Representative

Main tasks includes integral involvement in the Formulation of the Protected Areas System Master Plan for Jamaica (policy level)

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TNC Jamaica previously generated taxonomic information in freshwater environments, but currently, they are not generating much of this kind of information on a regular basis, but rely heavily on the information that is generated from other sources. There is limited and ad‐hoc generation of freshwater taxonomic information. The organization does not keep specimens but do however, retain species information such as those that emanate from specific projects in Jamaica. Over the past 6 years, the Conservancy has spent considerable effort in Eco‐regional planning for the terrestrial, marine and freshwater environments. These assessments depended heavily on existing taxonomic knowledge available in Jamaica. There is no current agenda for freshwater research at TNC Jamaica. This research was being done ‐ several years ago ‐ but with the shift in programme objectives to more management the research work has ceased. This is in a significant way the result of funding constraints which have caused the Conservancy to shape the Work Programme to adapt and meet other objectives. Conservation programmes in freshwater environments was concentrated in the Cockpit Country and the Rio Grande Valley. The Conservancy’s Cockpit Country Parks in Peril Project aimed to promote the sustainable use of the Cockpit Country as well as preservation of the rich biodiversity with the area. In the Rio Grande Valley, the prevalence of River Poisoning events as a fishing practice was substantial and deemed necessary for attention by TNC in order to conserve the freshwater fauna in the system. 3.5.2 Jamaica Conservation and Development Trust (JCDT) Since its inception in 1987, the JCDT has been a leading environmental NGO in Jamaica. The focus of its work has been and continues to be the conservation of the Blue and John Crow Mountains National Park (BJCMNP). The JCDT has conducted some biological research such as bird surveys, and has facilitated and participated in floral and faunal research within the park. The Research Prospectus of the JCDT is shown below:

1. The distribution of Pittosporum undulatum and appropriate methods of control in the Blue and John Crow Mountains National Park.

2. Controlling Pittosporum viridiflorum, Melinus minutiflora (molasses or Wynne grass), Gleichenia sp. (fern), Hedychium gardnerianum (ginger lily), and Polygonum chinense (red bush) in the Blue and John Crow Mountains National Park.

3. Investigating competition between invasive plant species (P. undulatum, P. viridiflorum, Melinus minutiflora, Gleichenia sp., Hedychium gardnerianum, and Polygonum chinense) of the Blue and John Crow Mountains National Park.

4. Bird composition in the central and eastern regions of the Blue and John Crow Mountains National Park.

5. Bird composition in the Blue and John Crow Mountains below 1,000 meters.

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6. Status of the range expanding Shiny Cowbird in the Blue and John Crow Mountains National Park.

7. Population status of the Jamaican Blackbird in the Blue and John Crow Mountains National Park.

8. Demographic Study on the Jamaican Hutia in the Blue and John Crow Mountains National Park.

9. A taxonomic survey of the insects found in the Blue and John Crow Mountains National Park.

10. Investigating potential bio‐indicators of ecosystem health in the Blue and John Crow Mountains National Park.

11. Demographic study of the Giant Swallowtail Butterfly (Papilio homerus)

12. A taxonomic survey of the aquatic invertebrates found in the streams and rivers Blue and John Crow Mountains National Park.

13. Ecological studies of conservation targets and other species within the Blue and John Crow Mountains National Park, with particular emphasis on specific threats and conservation management requirements.

14. The distribution, size, growth and shrinking rate of coffee farms in and around the Blue and John Crow Mountains National Park.

15. The harvesting of non‐timber forest resources, and the examining of resource dynamics and resource users.

16. Silvicultural requirements and suitability of some indigenous tree species on farmland areas around the Blue and John Crow Mountains National Park.

17. The survival and growth rates of young indigenous trees in open agricultural areas around the Blue and John Crow Mountains National Park.

18. Species composition in forest soil seed banks of the Blue and John Crow Mountains National Park.

19. Habitat assessment of the upper montane rainforest over limestone on John Crow peak.

20. Habitat assessment of the Montane Summit Savannah and Riparian communities in the Blue and John Crow Mountains National Park.

21. Assessment of species on the northern slopes of the Blue Mountains, particularly bryophytes and lichens.

22. The effect of forest clearance on soil fertility and productivity and water yield.

23. Updated forest and wildlife inventory

24. Re‐opening of the Park/Forest Reserve boundary and investigation of land tenure and lease issues resulting in an accurate delineation of Park lands and boundaries.

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25. The impact of buffer zone communities on the Blue and John Crow Mountains National Park, including issues related to demographic changes.

26. Maroon communal land ownership within the Blue and John Crow Mountains National Park.

27. Analysis of participatory approaches to natural resources management.

28. Impact of wild hog hunting on the ecological integrity of the BJCMNP.

29. Studies and pilot projects on sustainable harvesting and use of natural resources e.g. wicker, insects.

30. Studies and pilot projects on growing of native plant species e.g. orchids, and farming of animal species e.g. Giant Swallowtail Butterfly for revenue generation.

31. Limits of acceptable change in the protected area especially recreational areas.

32. Analysis of hazard vulnerability within the Blue and John Crow Mountains National Park, and identification and mapping of areas for special management.

This Research Prospectus shows the linkages between taxonomy and conservation, and also demonstrates the involvement of communities within the BJCMNP in conservation and research. Though it is mainly focussed on management strategies for conservation, the JCDT carries out early detection and response to invasive alien plants, larval food preservation for butterflies, avifuanal surveys, park wildlife inventories, lower plants (such as bryophytes and lichens), and entomological surveys. The Trust carries out some of this taxonomic research, but collaborations with the UWI, Forestry Department and other agencies are prevalent in meeting the goals of the Research Prospectus. The Rangers and other staff members who work for the JCDT in the BJCMNP have received training in plant and animal identification, and this training has been continuous while they perform their duties. Their interest levels are high in also broadening their skills and learning about the flora and fauna that are found in the park.

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Section 4 Conclusions from Main Findings

The following represents a summary of the major gaps elucidated during the study.

1. Human capacity at the NHMJ is limited. Persons are not trained specifically for a taxonomic area, but are required to be knowledgeable across all taxa in order to serve the country’s needs.

2. Marine Collections are the most limiting at the NHMJ as there is the absence of a

marine biologist on staff; ongoing collections are therefore biased towards the terrestrial environment though adequate SCUBA gear is present within the NHMJ.

3. The JACHM’s capacity to house comprehensive statistics is limited to lists, and

features such as georeferenced distribution data is not available. 4. Information flow into the JA CHM is limited, and persons have to be urged to

contribute data to the JA CHM. This is reflected in the representation of taxa in the JACHM.

5. There is currently no taxonomic research project in the NHMJ focussed on the

marine or freshwater environments, and this is primarily a reflection of the training and expertise of the current staff cadre towards the terrestrial environment.

6. The Research Agenda for the NHMJ is set internally mainly, thereby underscoring

the need for increased collaboration and coordination of taxonomic research. 7. The geographic range of taxonomic research by the NHMJ is limited though the

responsibility given to the Museum is island wide. Lack of resources for travel and shortage of trained persons appear to be the main reasons for this finding.

8. Training in Molecular Systematics, Marine Flora and Fauna, Phylogeny and Lower

Plants required for existing researchers in NHMJ, or persons with these skills added to the current staff cadre.

9. Taxonomic Research Programme for the UWI‐DLS herbarium absent. Taxonomists

are also absent from this facility. 10. Only one (1) dedicated staff member is assigned to the herbarium, as the other

person has recently completed his graduate work, and will soon be relocating out of the Herbarium.

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11. The staff of the UWI‐DLS Herbarium require training in lower plants, grasses, ferns as well as performing effective and accurate desktop research.

12. Mangrove biota is reasonably well known through work done mainly at the Port

Royal Mangroves out of the Port Royal Marine Laboratory. 13. Hard‐bottom fauna, such as coral and algae, are also well studied and understood. 14. Taxonomic work on Sponges has been done on mangrove sponges using spicules,

and a photographic guide was developed. However, reef sponges are poorly known. 15. Nudibranchs are poorly known. 16. Mangrove ascidians have been extensively studied and documented by Prof. Ivan

Goodbody, especially from the Port Royal mangroves. 17. Phytoplankton and Zooplankton taxonomy is perhaps the area that is mostly

studied in the UWI‐DLS/CMS. 18. Bryozoans in Kingston Harbour have been studied in depth. Reef bryozoans,

however, is an area that requires more taxonomic work. 19. Other gaps in marine taxonomy at UWI‐DLS/CMS include benthic

macroinvertebrate infauna and jellyfishes. 20. The marine bony fishes, especially the commercially important groups such as

snappers, parrotfishes, acanthurids, groupers, jacks and triggerfishes are well understood.

21. The freshwater macroinvertebrates require more attention. 22. With respect to gaps in free‐living nematodes in the soil, very little is known about

their taxonomy. 23. Soil fungi are not adequately described. 24. Training is required in molecular taxonomy of fungi and nematodes to complement

the limited morphological taxonomic expertise. 25. Some of the entomological taxonomic groups which have been under‐studied in

Jamaica include Pyralidae (snout moths), Nocturidae, Caribidae (beetles), Pseudococcidae (mealy bugs) and the Homopterans. Many of these are pest species, and very little is currently known about their taxonomy.

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26. At NEPA, a substantial amount of species information is embedded in environmental assessment submitted to the Agency. This information is not however in a readily usable form, and validation of the taxonomic data is required.

27. NEPA requires in‐house human capacity in plant taxonomy, freshwater taxonomy

and increased technical capacity in several areas of taxonomy which include herbs and grasses, freshwater species, marine benthic macroinvertebrate infauna, ichtyoplankton and marine sponges.

28. The Forestry Department’s field staff lack knowledge and need training in plant

identification, to include not only trees, but also shrubs and lower plants. 29. The Forestry Department does not have reference collections and relies

substantially on the UWI‐DLS and the IOJ‐NHMJ Herbaria. There is however an intention to establish a small reference collection with the Department.

30. The Fisheries Division does not focus on taxonomic research in the marine

environment. Focus is on management of the fish stocks based on data collected on landings. The Fisheries Information System at the Fisheries Department collects inadequate data to produce meaningful stock assessment to guide management of the fishable resources. Human, technical and infrastructure gaps exist and these hinder the collection and provision of useful information.

31. TNC is focussed currently on management of the marine environment mainly. There

is some focus on the terrestrial and freshwater environments, but this again is limited to mainly protected area management and community participation in conservation.

32. The JCDT’s research programme covers some areas of taxonomy in the BJCMNP.

These include invasive alien plants and animals, freshwater invertebrates, avifauna, tress species, and insects.

33. There is no nominated focal point from Jamaica for the Global Taxonomy Initiative

(GTI) under the CBD.


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Table 3: Summary of National Capacity and Gaps in Taxonomy (Please note that the human resource numbers presented here will have overlaps, as there is normally one person that has more than one skill set) Taxonomic Group Current Main Research

Activities Existing Human Resources

Reference Collections

Improvement required

Angiosperms Collections of specimens occur regularly at UWI‐DLS and NHMJ‐IOJ ‐ Research consistently being carried out across Jamaica by UWI‐DLS, NHMJ‐IOJ, NEPA, JCDT, Forestry Department

‐ UWI‐DLS: 4 ‐ NHMJ‐IOJ: 3 ‐ NEPA: 2 ‐ Forestry Dept: 4 ‐ JCDT: 2

Herbaria at UWI‐DLS and NHMJ‐IOJ; both collections are well kept and extensive.

‐ Expertise in grasses needed ‐ Research Programme needed

Pteridophytes ‐ collections and research being done but on a minimal and ad‐hoc basis

‐ UWI‐DLS: 1 Herbaria at UWI‐DLS and NHMJ‐IOJ; contain some specimens, but this needs improvement.

‐ Expertise in pteridophytes needed ‐ Research programme needed

Gymnosperms ‐ collections and research being done but on a minimal and ad‐hoc basis

‐ UWI‐DLS: 1 Herbaria at UWI‐DLS and NHMJ‐IOJ; contain some specimens, but this needs improvement.

‐ Expertise in gymnosperms needed ‐ Research programme needed

Marine Hard bottom flora & fauna

Ongoing research being done at the UWI‐DLS, CMS, NEPA, and some eNGOS such as MBMP, CCAM.

UWI‐DLS: 8 (includes current graduate students) CMS: 6 (includes

No established reference collections exist, but photos and field guides are easily

‐ current capacity is adequate ‐ succession of new students and trainees also

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Taxonomic Group Current Main Research Activities

Existing Human Resources



current graduate students) NEPA: 5 eNGOs: 4 (transient numbers)

available at these agencies, as well as from online sources

adequate

Marine Phytoplankton

Ongoing research, teaching and monitoring being done at the UWI‐DLS, CMS.

UWI‐DLS/CMS: 10 (includes current graduate students)

Reference collections exist in the DLS‐UWI

‐ current capacity is adequate ‐ succession of new students and trainees also adequate

Marine Zooplankton Ongoing research, teaching and monitoring being done at the UWI‐DLS, CMS.

UWI‐DLS/CMS: 6 (includes current graduate students)

Reference collections exist in the DLS‐UWI


Sponges ‐ Significant Research was done on the taxonomy of mangrove sponges by UWI‐DLS

‐ UWI‐DLS/CMS: 1 Though some collections exist in UWI‐DLS, these collections are not exhaustive. Photographic guide of spicules available for the mangrove sponge taxonomy

Reef Sponges need attention

Mangrove Ascidians ‐ Significant Research was done on the taxonomy of mangrove ascidians by UWI‐DLS: Prof. Ivan Godbody

No current expert resident in Jamaica

Extensive collections exist on the mangrove ascidians collected and accessioned by Prof.

Sustained programme required

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Goodbody

Nudibranchs No current work being done on this group

No human capacity currently engaged

No reference collections exist

Programme required

Bryozoans Bryozoans in Kingston Harbour studied by UWI‐DLS

UWI‐DLS: 2 Key for Bryozoans in Kingston Harbour developed

Reef Bryozoans need to be studied

Macrobenthic Invertebrate Infauna

No current work being done on this group



Programme required

Jellyfishes No current work being done on this group



Programme required

Bony fishes Ongoing research, teaching and monitoring being done at the UWI‐DLS, CMS.

UWI‐DLS/CMS: 14 (including current graduate students) NEPA: 4 Fisheries Division: 24

‐ Small reference collection exist at UWI‐DLS; ‐ Fisheries Division has fisheries information management system


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Freshwater Phytoplankton




Programme required

Freshwater Zooplankton




Programme required

Freshwater Fish Ongoing research, teaching and monitoring being done at the UWI‐DLS, CMS.

UWI‐DLS/CMS: 5 (including current graduate students)

‐ Small reference collection exist at UWI‐DLS;


Mycology Ongoing research and teaching being done at the UWI‐DLS and Min. of Ag. on small sectors of the group, mainly agricultural pests.

UWI‐DLS: 4 Min. of Ag.: 3

No reference collection exist

‐ succession of new students and trainees inadequate ‐ scope of taxonomic knowledge needs to be broadened to cover soil fungi ‐ molecular taxonomic training needed

Nematology Ongoing research and teaching being done at the UWI‐DLS and Min. of Ag. on small sectors of the group, mainly agricultural pests.

UWI‐DLS: 4 Min. of Ag.: 3

No reference collection exist

‐ succession of new students and trainees inadequate ‐ scope of taxonomic knowledge needs to be broadened to cover soil fungi

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‐ molecular taxonomic training needed

Entomology Ongoing research and teaching being done at the UWI‐DLS

UWI‐DLS: 9 (including current graduate students) NHMJ‐IOJ: 3

Reference collection exist at the UWI‐DLS and NHMJ‐IOJ

Some of the major gaps in taxonomic work include Pyralidae (snout moths), Nocturidae, Caribidae (beetles), Pseudococcidae (mealy bugs) and the Homopterans.

Land Snails Ongoing research and teaching being done at the UWI‐DLS

UWI‐DLS: 3 (including current graduate students) NHMJ‐IOJ: 3

Reference collection exist at the UWI‐DLS and NHMJ‐IOJ

Large quantities of specimens to be curated; work to be done outside of the eastern sections of Jamaica

Taxonomic Databases and Information Systems

Maintenance of Information Systems at UWI‐CMS‐CCDC, JACHM‐IOJ, Fisheries Division‐Min. of Ag.

UWI‐CMS‐CCDC: 1 JACHM: 1, sometimes 2 Fisheries Division‐Min. of Ag.: 1

Not applicable Synergies to be enhanced; quality and quantity of data coming into the systems also to be enhanced

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Section 5 Recommendations for Bridging the Gaps in Taxonomic Knowledge

There are several gaps in taxonomic knowledge which have been outlined in the previous section and covers areas such as infrastructure, resources and technical expertise. The recommendations to bridge these gaps are outlined below: Recommendation 1: Training programmes in taxonomy must be developed and implemented on an ongoing basis. These programmes should target the training of undergraduates and postgraduates in the first instance. There is a shortage of taxonomists, and therefore the training of high level experts in taxonomy is crucial. It would be strategically wise to implement this level of training first to improve the cadre of trainers in taxonomy, as well as increase high level research in taxonomy. These persons would then be able to design and deliver similar training programmes as well as short courses in certain areas of taxonomy, especially those areas cited as gaps in the previous section. Of immediate focus, taxonomic training programmes should be developed in the following areas:

1. Molecular Systematics,

2. Phylogeny

3. Lower Plants

4. Marine Benthic Macroinvertebrate infauna

5. Grasses

6. Herbs

7. Ichtyoplankton

Trainees for these high level programmes should be comprised of persons from the Natural History Museum, University of the West Indies, National Environment and Planning Agency, Ministry of Agriculture and Fisheries, and selected non‐governmental agencies and tertiary institutions. These persons are both generators and/or significant users of taxonomic information. Taxonomy is a very specialized science, and requires significant aptitude and patience to acquire the necessary skills. Training of persons who are already in the field and who truly realize the value of taxonomic knowledge would be the first step to ensuring that the training is effective and long lasting. These trained experts can now design programmes to train young taxonomists for succession planning. Training of environmental scientists, protected areas personnel, naturalists and other such person as parataxonomists would add value and capacity to the field of taxonomic research in Jamaica.

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This training programme would be better served to be hosted in Jamaica. The University of the West Indies (Mona) ‐ Department of Life Sciences, is currently more distinctly placed than other academic institutions in Jamaica to lead the training. There is the combination of the accredited academic structure, teaching facilities, field resources, laboratory facilities, taxonomic collections, as well as a network of academic partnerships that can provide the training. The programmes being hosted in Jamaica would make the training more affordable and would be able to train more persons over a long period of time. The training would also be more relevant as areas of special biodiversity, such as the Blue and John Crow Mountains, Hellshire Hills and the Cockpit Country can be used as the field locations. Some training programmes overseas that would fill current gaps in taxonomic knowledge identified above include:

Fairchild Tropical Botanic Gardens – “Tropical Flowering Plants” course, which provides a logical basis for identification of species in a structured way

Internship/Observership with KEW and/or UWI‐Trinidad‐Kew Workshop on Herbarium management and techniques

Smithsonian Institution Internship Programme

University of Puerto Rico taxonomy programme

University of Georgia taxonomy programme in freshwater shrimp

North Carolina State University taxonomy programme in migratory fish

Exchange Programmes through the Centre for Marine Sciences to NOAA South‐east Fisheries Science Centre (Florida)

Recommendation 2: Digitisation of Botanical and Zoological Collections must be done for all previous collections along with the implementation of a programme to digitise current collections. It should be the goal to digitise all botanical and zoological collections and make these databases searchable through the internet. The process has started with the work being done at the UWI Herbarium and the IOJ/NHMJ Herbarium, and represents a good model. Digitisation should be embedded in practice as part of the accession process for new specimens. This should include creating an electronic entry and updating the database at regular intervals. The vast number of specimens that currently exist at these herbaria makes the process of digitisation extremely labour intensive, and therefore dedicated staff time is required over a protracted amount of time to covert these into digital records. It is not possible for this to be done using the existing staff members, as already the human resource capacity present in the herbaria is significantly lacking in numbers and technical expertise. Therefore, new staff will be required. A programme of digitisation should be implemented rather than specific projects, as these projects are often short‐lived and would not lead to a significant and sustained conversion rate of the specimens into digital formats.

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Training in the methodology can be delivered locally employing the skills learned by the current researcher. In addition to specimens, reference materials such as books, journals, dichotomous and polychotomous keys should also be digitally formatted and made available through the internet. A model for biodiversity systematics and taxonomic databases is ETI Bioinformatics. ETI BioInformatics develops and produces scientific and educational computer‐aided information systems. They offer a wide range of products and services, including scientific and educational web applications; the Linnaeus II software package for biodiversity documentation; a series of scientific and popular titles on CD‐ and DVD‐ROM and a 3D imaging studio. Taxonomists and specialists are invited to become ETI partners and to sign up to the World Taxonomist Database, joining 4,602 colleagues. The World Biodiversity Database currently includes 25,493 extensively described and illustrated taxa. The World Biodiversity Database (WBD) is a continuously growing taxonomic database and information system that allows you to search and browse a number of online species banks covering a wide variety of organisms. The 21 species banks which are accessible through the WBD offer taxonomic information, species names, synonyms, descriptions, illustrations and literature references, as well as online identification keys and interactive geographical information systems. The WBD currently includes 25,493 unique taxa, plus 4,149 synonyms. The online publication of several projects was made possible by the financial support of NLBIF. The World Biodiversity Database allows a user to work through taxonomic keys to identify an unknown species. The interactive mechanism shows a series of decisions based on taxonomic traits that the user can employ to identify the species, and also includes definitions for anatomical parts, as well as drawings and images to assist. Recommendation 3: Advancement of DNA Bar‐coding must be done and used as a tool for Taxonomic Research to complement traditional techniques. DNA bar‐coding employs the use of short genetic markers to identify an already known organism as belonging to a particular species. This has far‐reaching benefits in filling the gaps in human resources for identification of specimens. It will also assist as a filter for taxonomists, as effort would not have to be spent to try and identify an already known and described species. This would also reduce the chances of duplication of classification of specimens as belonging to two different species, rather than two specimens of the same species. The technology should be made available in at least one institution in Jamaica. This type of technology is very expensive and the associated human and technical capacity is required on a permanent basis. The best place for this is the Natural History Museum – Institute of Jamaica. With the high percentage of species in Jamaica being endemic, genetic signatures for these species should be formulated and added to the system for future comparisons.

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Recommendation 4: A mechanism to improve access to technical assistance must be implemented The users of taxonomic information and the providers of taxonomic information should have clear lines of contact. Though taxonomic professionals are limited, the country should make more efficient use of the existing capacity. The World Taxonomist Database is an excellent platform that can be used to list taxonomic experts in Jamaica. Currently, only two experts are listed from Jamaica. The population of this database with the other Jamaican taxonomists will be very beneficial to linking the demand and supply for taxonomic knowledge in Jamaica. It would prove to be more beneficial for the JA CHM to provide a link to this database, rather than host the Jamaican list of taxonomic experts. This would allow a user to visit one database to find experts in particular taxa that may not be present in Jamaica. The JA CHM through its network of subscribers and visitors should aim to regularly update the experts listing for Jamaica, and also to publicize such listing to biodiversity practitioners, especially those environmental professional who carry out biological assessments for Environmental Impact Assessments. The JA CHM should also have a mirrored list of local experts which would need to be simultaneously updated and kept in line with the world database. Recommendation 5: Publication of taxonomic research regionally must be enabled and encouraged The publication of taxonomic research is vitally important to the sharing of knowledge nationally and globally. Though there are numerous international journals in taxonomy, there are no such journals regionally. The presence of a regional taxonomy journal would promote the dissemination of taxonomic research locally and regionally. This would also encourage taxonomic research in Jamaica by scientists, as they would now have a suitable and receptive outlet for their valuable work. The Institute of Jamaica should source funding from the Global Taxonomy Initiative to start this kind of publication. The scope can be broadened to include the wider Caribbean region, and a sustainable fee structure would be required for submission of papers. Recommendation 6: Nominate a focal Point for the Global Taxonomy Initiative (GTI) At the CBD Conference of the Parties (COP8) in 2006, all party countries were urged to nominate GTI National Focal Points. Jamaica is currently without a nominated GTI Focal point. This move would positively advance taxonomy in Jamaica. The presence of a focal point would place the country’s commitment to improve taxonomic knowledge to conserve biodiversity in a clear light with the CBD. This move would also allow for greater information sharing among participating countries in the GTI which will also increase the county’s technical capacity.

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According to the CBD‐GTI, the general role of the GTI National Focal Points is to:

Develop linkages and facilitating information exchange in order to advance the implementation of the GTI at national level;

Respond to requests for input from the Conference of the Parties and the Secretariat related to the GTI;

Communicate and collaborate with other GTI National Focal Points to facilitate implementation of the GTI at sub‐regional, regional and global levels;

Collaborate with other national‐level focal points for the Convention and focal points from other biodiversity‐related conventions to facilitate implementation and mainstreaming of the GTI at national level.

The nominated focal point from Jamaica for the GTI should reside in the Natural History Museum‐Institute of Jamaica. Recommendation 7: Coordination of Taxonomic Research and Dissemination of findings must be a feature of the national biodiversity action plan. The establishment of a national working group on taxonomy should be done. This body would be responsible, among other things, to:

1. Review national needs for taxonomic research in particular taxa and localities on an ongoing basis

2. Make recommendations for research agendas for institutions such as UWI, TNC, NEPA, IOJ to include taxonomic research ensuring that the research is relevant to the national objectives

3. Monitor projects to provide updates to the wider group as well as ensure the effective use of research in conservation planning

4. Coordinate research to promote effective use of resources and maintenance of scientific integrity and rigour

5. Source funding for taxonomic research, training and publication

6. Source technical expertise to fill gaps in taxonomic research

The Institute of Jamaica – Natural History Division is the best positioned institution to lead this Working Group. Recommendation 8: Source funding for taxonomic research must be established and managed to ensure it is available continuously A sustainable and coordinated approach to seeking funding for taxonomic research should be a part of the mandate of all institutions involved in taxonomy. Small grants are available on a regular basis to supplement larger but more irregular grants. Some of these small grants targeted towards taxonomic research are outlined below:

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1. The Ernst Mayr Travel Grants in Animal Systematics

This special grant is focussed on research in animal systematic and is administered by The Museum of Comparative Zoology (MCZ) at Harvard University. This grant provides travel support only to conduct research on poorly‐known taxa. The principal objective of these grants is to stimulate taxonomic work on neglected taxa. These include taxa in institutional collections. The study of type specimens and their correct identification is the greatest need in poorly known taxa. This typically requires visits to other museums.

2. The Linnean Society

This Society distributes a number of small grants to a total of £30,000 in any one year. These grants are separated into different themes:

SynTax: Collaborative research in systematics

The Systematics Research Fund: Systematics and Taxonomy

The Anne Sleep Award: Biological Research in the Middle and Far East

The Appleyard Fund: Supporting research projects in botany or zoology by Fellows and Associates of the Society

The Dennis Stanfield Memorial Fund: Supporting botanical research on tropical African plants

Percy Sladen Memorial Fund Grants: Supporting field work abroad in the earth and life sciences

3. Partnerships for Enhancing Expertise in Taxonomy (PEET)

This grant supports and encourages partnerships with academic institutions, botanical gardens, freshwater and marine institutes, and natural history museums. It is administered by the US National Science Foundation and seeks to enhance taxonomic research and help prepare future generations of experts. Projects should train new taxonomists and should translate current expertise into electronic databases and other products with broad accessibility to the scientific community.

4. National Taxonomy Research Grant Program

The Australian Biological Resources Study (ABRS) National Taxonomy Research Grant Program provides grants for taxonomic research. Grants are awarded for research projects where the primary aim is to undertake taxonomic research on the Australian biota or to develop products that aid in the dissemination of taxonomic information. The program also supports projects that build Australian taxonomic capacity.

5. GTI Special Fund

At COP8, the GTI received offers for special funding from external agencies to conduct research in taxonomy. The major player and administrator of this special fund is BioNET International.

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6. The Darwin Initiative

The Darwin Initiative assists countries that are rich in biodiversity but poor in financial resources to meet their objectives under one or more of the three major biodiversity Conventions: the Convention on Biological Diversity (CBD); the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES); and the Convention on the Conservation of Migratory Species of Wild Animals (CCMS), through the funding of collaborative projects which draw on UK biodiversity expertise.

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Section 6 References

Documents: Baseline Survey for the Development of a Sustainable Fisheries Management Plan for CARICOM (2009) – CRFM and Trevor Hamilton and Associates Ltd. Jamaica’s National Environmental Action Plan (JaNEAP) – 2006‐2009 National Biodiversity Strategy and Action Plan National Ecological Gap Assessment Report (2008) for the Jamaica Protected Areas System Master Plan The Nature Conservancy Eco‐Regional Plan – Marine ERP, Terrestrial ERP and Freshwater ERP United Nations Convention on Biological Diversity Websites: Department of Life Sciences (UWI): http://www.mona.uwi.edu/lifesciences/ ETI Bioinformatics ‐ http://www.eti.uva.nl/ Global Biodiversity Information Network: www.gbif.org Global Taxonomy Initiative (GTI): http://www.cbd.int/gti/ Jamaica Clearing‐House Mechanism: www.jamaicachm.org.jm Jamaica Conservation and Development Trust: http://www.greenjamaica.org.jm The Nature Conservancy: www.nature.org

Appendix 1 Taxonomic Questionnaire

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Date: Name of Interviewee: Organization/ Agency /Affiliation: Status: (Gov’t, NGO, Academia etc.): Does your organization generate or use taxonomic information, (or both)? Does your organization keep taxonomic records, such as specimens or species information? Which plant or animal taxonomic groups comprise the collections? Is the organization involved with the Convention on Biological Diversity and in what capacity? Outline any projects undertaken and publications produced by your organization in taxonomic research in the last 10 years. How is the research agenda for this organization set, especially as it relates to generation of taxonomic information? Do you think that the research agenda is aligned to meet the needs of the country? Which locations in Jamaica is the agency focussed on with respect to taxonomic research? Which area(s) of taxonomy do you think is (are) not given as much attention in Jamaica as it should? .. .and why is the attention required? How many staff members are involved in taxonomic research in this organization? What level of training in taxonomy do you and/or your staff possess in taxonomy? Where did you/they receive training? What was the focus of the training programmes? Which area of taxonomy do you consider your / your team’s greatest strength? Which area of taxonomy do you consider your or your team’s greatest weakness? Which training programme would be most desirable for you to increase your taxonomic knowledge? Please also state the reason. Do persons outside your organization seek assistance from you with respect to taxonomy? Describe the assistance provided. Do you think that your organization adequately fosters your development in taxonomy? What percentage of your work effort is spent on taxonomy? Other (describe) Does your organization keep and manage taxonomic information? In what form does this information exist? Is taxonomic information generated by your organization available to persons outside the organization? In what form? Is the taxonomic information shared through a web‐based mechanism? Are there duplicates of this information? Is the format and design of the information system aligned to any particular standard, local or international? If so, which one (s)?

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Chapter 5 – Assessment of the Organisational and Operational Requirements