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OVERVIEW OF SOUTH AFRICA ‘S
LEGAL FRAMEWORK ON ACCESS
AND BENEFIT SHARING
Venue: Starling Hotel, Geneva,switzerland
Date: 11-12 June 2018
Mrs Lactitia Tshitwamulomoni
PRESENTATION OUTLINE • Context: Overview of South Africa’s
Biodiversity
• South Africa Legal Framework for ABS
Implementation
• Institutional Arrangement for ABS
• Overview of the National Environmental
Management: Biodiversity Act, 2004 (Act No.
10 of 2004) & the Bioprospecting, Access and
Benefit Sharing Regulations, 2015
SOUTH AFRICAN BIODIVERSITY • A mega-biodiverse country - 3rd in the world
after Brazil and Indonesia
�Rich in indigenous biological resources and
cultural diversity ; and
�Rich in traditional knowledge on properties of
plants, animals and microorganisms etc.
�IBRs & TK are desired by both non-
commercial & commercial sectors to develop
new scientific information and commercial
products.
SOUTH AFRICAN BIODIVERSITY• Occupies about 2% of the world's land area, but is
home to nearly 10% of the world’s plants; 7% of
reptiles, birds & mammals; 15% of known coastal
marine species.
2% of the
world’s land area
10% of the
world’s plantsSouth Africa
15% of the world’s
coastal marine species
7% of the world’s
reptiles, birds
and mammals
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Top five plantsTop five plants
Sector in numbersSector in numbers
End productsEnd products
BIOPROSPECTING/ BIOTRADE SECTOR OVERVIEW
Rooibos Aloe ferox Honeybush
Buchu Pelargonium sidoides
15 – 20k tonnesplant
production
1,000products with IBRs
70% raw materials exported
Cosmetics Tissue OilsComplementarymedicines
Foodflavourings
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South Africa’s plant resources have incredible com mercial potential
Pelargonium sidoides
2001€8 million
2008€80 million
OVERALL POLICY OBJECTIVES
1) To redress the injustice of the past in order to achieve socio-economic development goals ~ fair & equitable benefits sharing.
2)To provide regulatory framework for bioprospecting / biotrade activities ~ attain conservation & sustainable utilization of IBRs ~ Permitting System.
3)To provide obligatory requirements to the regulated sectors to recognize existing TK on the useful properties of IBRs ~ Benefit Sharing Agreements.
4)To provide obligatory requirements to the regulated sectors to seek permission from the land owners to access/collect IBRs ~ Material Transfer Agreements &
Benefit Sharing Agreements.
5) To implement international regulatory obligations adopted by South Africa ~ CBD &
Nagoya Protocol on ABS
RELEVANT FRAMEWORK LEGISLATION IN SOUTH
AFRICACBD & Nagoya Protocol on Access to
Genetic Resources & the Fair and
Equitable Sharing of Benefits Arising
from their Utilisation- administered by
DEA
NEMA (1998), NEMBA
(2004), BABS Regulations
(2008 – amendments 2015),
TOPS, CITES- administered
by DEA
Patent Amendment Act (2005)-
administered by DTI
Indigenous Knowledge Systems
Policy (2004) & IKS Bill -
administered by DST
Constitutional Concurrent
Mandate- 9 x Provincial
Ordinance
Constitutional mandate
8
Ratification
02 November 1995
10 January 2013
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INSTITUTIONAL ARRANGEMENT FOR ABS
Nagoya Protocol Requirements South African Situation
1. National Focal Point
National Department of
Environmental Affairs
2. Competent National Authority
3. Publishing Authority
4. Checkpoints (N.B Operational but not yet
formalised through the ABS Clearing House)
Patent Office, Ports of Entry & Exit,
Provincial Permit Issuing Authorities,
National Department of Environmental
Affairs
NATIONAL ENVIRONMENTAL MANAGEMENT:
BIODIVERSITY ACT, 2004 (OBJECTIVES)
Provides for, amongst other:
• The management & conservation of biodiversity within South Africa;
• The use of IBRs in a sustainable manner; and
• The fair & equitable sharing of benefits arising from the use of IBRs &associated TK.
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NEMBA CHAPTER 6 (PURPOSE)
Provides a framework for:
� The regulation of bioprospecting involving IBRs;
� The regulation of export from the Republic of IBRs for purposes ofbioprospecting & non-commercial research;
� The fair & equitable sharing of benefits arising from bioprospectinginvolving utilization of IBRs & associated TK; and
� South Africa’s IBRs to be developed & utilized in an ecologicallysustainable manner while promoting social & economic development, inparticular in the areas where the IBRs & associated TK are accessed.
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NEMBA CHAPTER 6 (SCOPE OF IBRs)
� Plants
� Animals
� Microorganisms (e.g Bacteria, Fungi, Viruses)
� Algae
� Derivatives
� Genetic Resources
� Genetic Information
� Genetic materials
N.B Visit South African National Biodiversity
Institute website to confirm the names of species
that are indigenous to South Africa ~
www.sanbi.org
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• Permit requirements (Section 81)
• Notification requirements (Section 81A)
• Protection of interests of Providers of Access to IBRs &/orAssociated TK (Section 82)
• Benefit Sharing Agreement requirements ( Section 83)
• Material Transfer Agreement requirements (Section 84)
• Establishment of Bioprospecting Trust Fund (Section 85)
• Exemptions (Section 86)
• Offences & Penalties ( Section 98(2), 101 &102)
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NEMBA CHAPTER 6 (KEY PROVISIONS)
PERMITTING PROCESS
1. Discovery phase• Notification of the Minister (nationally)• Discovery Phase Export permit (internationally)
2. Commercialisation phase• Biotrade permit (nationally & internationally)• Bioprospecting permit (nationally & internationally)• Integrated biotrade & bioprospecting permit (nationally &
internationally)3. Any other kind of Research
• Export permit for research other than bioprospecting(internationally)
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WHO MAY APPLY FOR A PERMIT OR NOTIFY
• A juristic person registered in terms of SA law.
• A natural person, who is a SA citizen or a permanent
resident of SA.
• A non-juristic or natural person jointly with a juristic
or natural person in terms of SA law.
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FLOW CHART OF PERMIT ISSUING AND NOTIFICATION AUTHORITIES
ProvincialDepartments
of Environmental Affairs (MECs)
Non-
Commercial
Research (Any
other kind of
Research)
Export Permit
(outside RSA)
National
Department of Environment Affairs (Minister)
Discovery phase
bioprospecting
Notification
(in RSA)
Discovery
phase Export
permit
(outside RSA)
Commercialisation phase
bioprospecting
Bioprospecting
Permit
(in & outside RSA)
Biotrade
permit
(in & outside
RSA)
Integrated
Biotrade &
Bioprospecting
permit
(in & outside
RSA)
STEP-BY-STEP PROCEDURES
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NEMBA CHAPTER 6 (KEY PROVISIONS)
PROTECTION OF RIGHTS OF
PROVIDERS OF ACCESS TO IBSs & TK
THROUGH MTA & BSA
REQUIREMENTS
Providers
Indigenous
biological
resources
(IBRs)
Traditional
knowledge
(TK)
Material
Transfer
Agreement
(MTA)
Benefit
Sharing
Agreement
(BSA)
Benefit
Sharing
Agreement
(BSA)
IBRs can be provided by land owners & Farmers,
organ of states & communities.
TK can be provided only by indigenous
communities & Associations
Providers of IBRs would need to enter into an
MTA and a BSA following a successful PIC process
Providers of TK would need to enter into a BSA
following a successful PIC process
Note: Annexure 11 of the BABS Regulations provides a pro-forma MTA and Annexure 12 of the BABS Regulations
provides a pro-forma BSA
PERMIT APPLICATION PROCEDURES
� Source documents www.environment.gov.za.
� Select & complete relevant Annexes to your project.
� Attach the signed permit application form, BSA(s) & MTA (s),
where applicable.
� Attach project summary/ background
� Pay the non-refundable permit application fee as prescribed
in Annexure 4.
� Submit permit application documentation to DEA.
� Contact DEA officials for assistance, where necessary.
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Discovery phase bioprospecting:
� Source documents www.environment.gov.za
�Complete Annexure 1
� Include non-disclosure agreement, where applicable
� Must also sign a commitment to comply with the requirements at
the commercialisation phase of bioprospecting
� Contact DEA officials for assistance
How do I notify about Discovery phase Bioprospecting
The permit application process
begins long before the application is
submitted to the Department of
Environmental AffairsDEA responds to applicant
with acknowledgment of
receipt
Minister takes a Final
decision and permit
issued. If not issued, give
written reason for her
decision
Negotiate and conclude
BSA and MTA. Complete
permit application form
Option to adjust
applications and re-submit
Application returned with
comments
MTA Material transfer agreement
BSA Benefit-sharing agreement
Applicant submits permit
application documentation
to DEA
Applicant must identify &
disclose all information
about the project to the
identified access provider
in order to obtain PIC
Application not
recommended for a final
decision
Application recommended
for a final decision
IBR Indigenous Biological Resource
TK Traditional Knowledge
Bioprospecting Advisory
Committee convenes
and reviews application
( Convene quarterly or
monthly)
TIMEFRAMES
• The Issuing Authority:
� must consider & decide on any permit application or notification within 120
working days after the receipt of such an application, if satisfied that all the
prescribed & requested information has been submitted.
� must within 10 working days after the date of receipt of such an application & in
writing, request the applicant to submit such information with 20 working days
after date of receipt of such a request.
• If the additional information requested is not submitted to the issuing
authority within 30 working days after such a request, such an application
must be deemed withdrawn.
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Dept. of Environment Affairs
Provider Access to IBR/ Associated TK
Obtain Prior Informed Consent,
negotiate & Sign BSA &/or MTA
Benefits paid
Complete Permit Application
form for:
• Commercialisation phase
Bioprospecting
• Biotrade
• Export of IBR for Discovery
phase bioprospecting
Benefit Sharing
Grant Permit
Submit permit application, BSA
&/or MTA
Approve BSA &/ or MTA
FLOW CHART OF ABS PROCEDURE
Applicant
Bioprospecting Trust Fund/ Suspense
Account
Issuing Authority (Minister)
CONTACT DETAILS
• Ms Natalie Feltman
Tel: +2712 399 8917
Email: [email protected]
• Ms Lactitia Tshitwamulomoni
Tel: +2712 399 9611,
Email: [email protected]
• Mr Ntambudzeni Nepfumembe,
Tel:+2712 399 9612
Email: [email protected]
• DEA website www.environment.gov.za
• Hotline 0800 205 005