“Conserving Biodiversity, Defending Traditional

Knowledge: 25 years of resisting biopiracy” Round Table on

“Preventing Biopiracy: Protecting Traditional Knowledge”

on 4th & 5th of April 2012, Navdanya,

New Delhi – 110 003Environment Support Group

Bangalorewww.esgindia.org

Discovering Brinjal Biopiracy

• Like most others, we were examining the environmental and social implications of B.t. Brinjal particularly in the backdrop of the Bt cotton experiences, and concerns of organic farmers

• When we wondered to who does the cotton that was accessed, and now brinjal, belong. Especially considering that by 2010, about 90% of cotton seed market had been monopolised by Mahyco’s B.t. Cotton

Brinjal Biopiracy

• When contacted, National Biodiversity Authority openly acknowledged that the regulatory agency had not approved access to local varieties of cotton now brinjal. Thus, confirming that the entire operation was in violation of Convention on Biological Diversity, 1992 and Biological Diversity Act, 2002.

• Such non compliance amounted to a serious crime and an act of bio piracy.

• Close review of all minutes of NBA confirmed the fact that at no point in its history, 2003-2010, the Authority had ever addressed the issue of legitimate access to indigenous varieties of brinjal. (The same agency, however, found time to discuss at length if its members’ dentistry costs could be reimbursed by the Government!)

• This was alarming as what was at stake here was not merely commercially accessing local varieties of brinjal, most of which are endemic in very local geographies, but that they were also being genetically modified and commercially commmodified by American multinationals (Monsanto/Mahyco) and universities (Cornell), with funding support from American Government (USAID), through a front company – Sathguru.

• Indian Universities were being used as conduits to access local genetic material, and also to undertake field trials. (UAS-Dharwad, Tamil Nadu Agricultural Univ, Indian Inst. Of Vegetable Research-Lucknow)

• We thought all this was relevant to the ongoing discussion on B.t. Brinjal, in the context of public consultations organised by the then Environment minister Mr. Jairam Ramesh.

• Most thought we were raising a bogus alarm!

How were 12 Brinjal Varieties

taken?

April 2005 Agreements1.Maharashtra Hybrid Seeds Company Ltd. (Mahyco), Indian subsidiary of Monsanto (Owner of Cry I AC gene, inserted into Brinjal)2.University of Agricultural Sciences, Dharwar (allowed access to 6 local varieties, including farmer bred)3.Tamilnadu Agricultural University (4 varieties of brinjal)4.Indian Vegetable Research Institute, Varanasi (8 varieties, incl. 2 hybrids)5.Sathguru Management Consultants Pvt Ltd6.Cornell University (Cry I AC gene patent)7.US AIDSub-licensee Agreements for accessing local varieties of Brinjal into which the patented B.t. gene was inserted at Mahyco lab in Maharashtra.The B.t. Brinjal product is a commodity and property of Mahyco/Monsanto.Karnataka varieties accessed are Malpur Local, Manjari Gota, Kudachi Local, Udupi Local, 112 GO and Pabkavi Local No compliance whatsoever with Biological Diversity Act 2002

190 plants declared Normally Traded Commodities

• We also discovered another shocking act of negligence on the part of MoEF and NBA who without any public consultation notified 190 plants as Normally Traded Commodities per sec 40 of BD Act

• Of the 190 plants, 15 species were found to be highly endangered, a fact confirmed by IUCN.

• There is absolutely no regulation on trade in biological resources in India. Once listed as NTC, the weak regulatory framework completely exposes the bioresources to over-exploitation, and potential extinction of species.

• The case of a fish Puntius denisonii, also known as Miss Kerala, is indicative of the threat that exists.

• Miss Kerala, discovered as a collector’s item in the 1996 Rome Aquarium Congress, has by 2010 come close to extinction due to commercial trade.

• IUCN has now placed it on the Red List - nearing extinction.

• If endangered plants are removed from the purview of the BD Act will they not meet the same fate?

Brinjals in Karnataka• About 50 varieties of brinjal are available in Karnataka, of

which Matti Gulla is one. It is known for its low moisture content, which makes it ideal for delicacies and ensures its long shelf life.

• It is sacred because of its legendary origins attributed to Vadiraja, one of the seers of the Dwaita school, who supposedly gave its seeds to the inhabitants of Matti to sow, and grow out of poverty.

• With a Global Indicator tag, marking Matti as the exclusive growing place of the Matti Gulla, the first harvest of this jade-and-moss green striped brinjal from this tiny hamlet is traditionally taken to the Udupi Srikrishna temple – as it is considered the Lord’s favourite vegetable.

• Sit down for a meal at the temple, and it'll show up on your leaf, shallow fried with a freshly-ground masala of red chilly, curry leaves, mustard, methi and coriander seeds. It could also be served as a fragrant “bolu huli”, cooked with tur dal as base and seasoned with hing to counter its astringency.

• Is inserting a transgene into Matti Golla an ethically correct decision, particularly considering that it is a sacred offering in a temple revered for its vegetarian purity?

ESG exposed Brinjal Biopiracy in February 2010

• ESG formally raised brinjal bio piracy and the 190 plants NTC issues in the last public consultation on B.t. Brinjal held by Jairam Ramesh on 6th February 2010

• He publicly ridiculed this submission.• Two days later, in his unprecedented decision ordering

moratorium on environmental release of B.t. Brinjal, he specifically chose to rebut the biopiracy claims – evident in the 1st footnote of his decision.

• What was worrying was that neither the Government and its instrumentalities, nor farmers and environment action groups focussing any attention on this gross violation of laws and acts of bio piracy

• Troubled by this, we filed Formal Complaints with the Karnataka Biodiversity Board, MoEF and NBAin February 2010, on both biopiracy and 190 plants (NTC) issues

• The Board systematically investigated the issues raised, and repeatedly confirmed its intent to prosecute violators on biopiracy.

• No concurrent action was evident from NBA or MoEF through 2010 and much of 2011.

• The Board repeatedly sought advise from National Biodiversity Authority but did not get any support till about April 2011

Is NTC clause a gateway to species extinction?

• "India Losing Rare Medicinal Plants", published on the front page of The Asian Age, 14th February, 2010, in which Jairam Ramesh is quoted to have said that "a five-year moratorium should be placed on the export of all raw materials in order to save these plants from extinction” while admitting “annually, Rs. 800 crores worth of rare medicinal plants are being exported in raw form. These plants then get re-imported back into the country as medicines which are sold at much higher prices.“

• Yet no action has been taken to review listing 190 plants as Normally Traded Commodities – over two years since we filed the complaint against the decision

Prosecution confirmed in Parliament• Jairam Ramesh completely ignored our biopiracy complaint

throughout his term.• This forced us to approach Parliamentarians in a public campaign,

and many, cutting across party lines, took up the issue.• CPI, Samajvadi Party, BJP, Janata Dal (S) and others took up the

issue with the MoEF and demanded to know from Jayanti Natarajan, who succeeded Jairam Ramesh, to confirm why action was not being initiated on the ESG complaints.

• Under pressure, NBA finally confirmed in a meeting held in June 2011 that it would initiate prosecution of Monsanto/Mahyco and others involved on biopiracy charges, based on ESG’s complaint.

• Natarajan, in he submission to Parliament, said the prosecution is the joint responsibility of National Biodiversity Authority and State Biodiversity Boards (Karnataka, Tamilnadu and Uttar Pradesh)

NBA resolution, 20 June 2011: • “A background note besides legal opinion on Bt brinjal on the

alleged violation by the M/s. Mahyco/M/s Monsanto, and their collaborators for accessing and using the local brinjal varieties for development of Bt brinjal with out prior approval of the competent authorities was discussed and it was decided that the NBA may proceed legally against M/s. Mahyco/ M/s Monsanto, and all others concerned to take the issue to its logical conclusion.”

Parliament told Monsanto will be prosecuted on biopiracy chargesFinding of NBA on BT. BRINJAL

9th September 2011

National Biodiversity Authority (NBA) has received a complaint from M/s. Environment Support Group, an NGO on the alleged violation by M/s. Mahyco / M/s. Monsanto and their collaborators for accessing and using the local brinjal varieties for development of Bt Brinjal. NBA has decided to proceed as per law against the alleged violators on the basis of reports of the State Biodiversity Board for accessing and using the local brinjal varieties without prior approval of the competent authority.This information was given by the Minister of State for Environment and Forests (Independent Charge) Shrimati Jayanthi Natarajan in a written reply to a question by Shri M.P. Achuthan And Shri D. Raja in Rajya Sabha today.

Karnataka Capitulates to Biotech Industry Pressure

• Warmed by NBA’s much delayed, yet affirmative, support to prosecute Monsanto and others, Karnataka Biodiversity Board began to initiate follow up action.

• Meanwhile, not willing to take any chances, ESG worked with farmers to issue private citizen suit notices on regulators to force them to take action.

• NBA now seemed very serious to initiate criminal prosecution against Monsanto and others.

• In a shocking volte face, Karntata Board in its January 2012 meeting chaired by tainted former Karnataka Environment Minister Krishna Palemar, decided to abandon prosecution of Monsanto/Mahco on grounds of biopiracy, and what are very lame reasons.

• Mr. Kaushik Mukherjee, IAS, Addl. Chief Secretary and Head of Dept. of Ecology, Environment and Forests of Karnataka, Chief Custodian of Biodiversity in Karnataka, apparently pushed for this reversal.

• This was Karnataka’s way to demonstrate its enthusiasm in welcoming biotech companies

• This decision came just before Bangalore Bio 2012 – a major conclave of biotech companies.

And now NBA Capitulates?Decision taken by NBA in its 22nd Meeting held on 22nd November 2012•22.10 (g) Case on Bt brinjal•The Secretary, NBA presented the status of action being taken on the issue of responding to a complaint of misappropriation of brinjal by M/s Mahyco. Two official members and one non-official member suggested no legal action be taken since the issue was merely a research collaboration that was exempted under the purview of the Act. The Chairman then provided the current legal interpretation of the case. Based on this, the members authorised the Chairman to seek necessary legal opinion in the matter and decide accordingly. The Chairman has informed the members that the issue on hand is purely that of possible misappropriation of local brinjal varieties and has nothing to do with biotechnology per se and/or its application.

Action: Secretary, NBA

Who Owns Natural resources? Who uses? Who decides? Who benefits?

• The people are the owners and the State is the custodian

• However, in practice, the State has arrogated to itself the power of ownership

• Movements and struggles to reclaim control of natural resources and commons have been patchily successful

“The State shall, in particular, direct its policy towards securing

(a)that the citizens, men and women equally, have the right to an adequate means of livelihood; (b)that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c)that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”

Article 39 of the Constitution of India.

Emerging Policies and Trends

Globalisation induced polices• Push for high growth rate in GDP terrms• FDI and private sector participation • But skews relationships of ownership,

traditional use and control of natural resources.

Strong influencing factors:• Govindarajan Committee on Investment Reforms, 2002• National Environmental Policy, 2006• National Water Policy, 2002• National Agricultural Policy, 2000• National Mineral Policy, 2008

World Investment Report, 2009

“Government could … promote contract farming between TNCs and local farmers in the direction of enhancing farmers' predictable income, productive capacities and benefits from global value chains.”

However, to deal with the extensive adverse impacts:

“... that deal with the need for international community (to) devise a set of core principles transparency in large-scale land acquisitions, respect for existing land rights, the right to food, protection of indigenous peoples, and social and environmental sustainability”.

How to fix the problem in a GDP based economy?

World Investment Report 2011

“Increasingly, transnational corporations are engaging with developing and transition economies through a broadening array of production and investment models, such as contract manufacturing and farming, service outsourcing, franchising and licensing. These relatively new phenomena present opportunities for developing and transition economies to deepen their integration into the rapidly evolving global economy, to strengthen the potential of their home-grown productive capacity, and to improve their international competitiveness.Unlocking the full potential of these new developments will depend on wise policymaking and institution building by governments and international organizations. Entrepreneurs and businesses in developing and transition economies need frameworks in which they can benefit fully from integrated international production and trade”.BAN Ki-moon Secretary-General of the United Nations

Figure 1. Top 10 recipients and sources of FDI inflows in developing Asia, 2009, 2010 (Billions of dollars)

The Mantra for growth• Developing countries

should have Open Door policy to TNCs

• Pave way for FDI with minimal licensing and regulation of operations.

• Mobilise domestic resources - infrastructure, skilled labour and finance

• Technocratic institutional support, not representative and accountable to public

International and National laws protecting biodiversity

Convention on Biological diversity, Rio, 1992.International and Legally binding treaty. Convention has three main goals:•conservation of biological diversity (or biodiversity);•sustainable use of its components; and•fair and equitable sharing of benefits arising from genetic resourcesConvention’s Objectives:•Develop national strategies for the conservation and sustainable use of biological diversity.Indiá’s Compliance Legislations:National Biological diversity Act 2002National Biological Diversity Rules 2004

Violating Farmers Rights under Access and Benefit Sharing

Collaborators have comprehensively failed to comply with Rule 14 of the Biological Diversity Rules, relating to “Procedure for access to biological resources and associated traditional knowledge”

They have also attempted to escape their liabilities under Sec. 21 of the Act, which guarantees due rights to local communities under the Access and Equitable Benefit Sharing Protocol, a principle objective of Convention on Biological Diversity, 1992, to which India is a signatory.

Regulator or Individual action to save biodiversity from Biopiracy?

State and National Regulatory agency duty bound to act against violators per Sec. 61 (A) of the Biodiversity Act.

Any independent person or benefit claimer can also initiate action against violator per Section 61 (B) of the Act, giving notice on regulator of intention to do so.

If no action is taken by regulator within a period of 30 days of receiving notice, benefit claimant can independently move the appropriate court in accordance with law.

Offences and Punishment

Violations Punishment Sections 3, 4 and 6 Imprisonment upto 5 years and/or fine upto Rs. 10

lakhs. Additional fine where damage exceeds Rs. 10 lakhs

Sections 7 and Section 24 (2) Imprisonment upto 3 years and/or fine upto Rs. 5 lakhs

Contravention of any direction of Central and State Governments and NBA and SBB

First offence: Fine upto Rs. 1 lakhSubsequent offence: Fine upto Rs. 2 lakhsContinuous offence: Rs. 2 lakhs everyday when default period continues

• All offences under the Act are cognisable (violators can be arrested without warrant) and are also non-bailable.

• When companies are violators, the company and officers in-charge are accountable for the violation.

• Punishments under the Biological Diversity Act are in addition to those already provided in laws protecting forests (Forest Conservation Act) and wildlife (Wildlife Protection Act).

• Provisions of Forest Rights Act further apply.

State Shelters Monsanto while it Hosts the CBD (COP)11

• Protecting India's biodiversity is thecollective responsibility of Biodiversity Management Committees at theDistrict Level, State Biodiversity Boards and the National BiodiversityAuthority.

• State Biodiversity Boards and the National Biodiversity Authority havepowers to initiate prosecution against violators, through the officials ofthe State Forest Departments and others.

• Decision to not implement the law against violators is outrageous in a year when India will host the 11th Conference of Parties on the Convention on Biological Diversity in October at Hyderabad.