Biodiversity - a new field of action for the Climate Alliance?
Lioba Rossbach de Olmos, January 1997
The Climate Alliance will soon be facing a new challenge. It will be about "Biodiversity", a matter of far greater complexity than the term would suggest. In the language of the "Convention on Biological Diversity" the term stands for a new conception of biological richness and species preservation. The Biodiversity Convention, just as the Framework Convention on Climate Change, was signed at the Earth Summit in Rio de Janeiro in 1992 and took effect in December 1993. It no longer restricts the right to protection to endangered species but extends it to the entire biological diversity of the Earth. Its integration of the concepts of species preservation and sustainable utilization of living organisms and its commitment to an equitable participation in the benefits, i.e., profits, derived from such utilization has sounded the bell for a change of paradigm. The countries of the South, which are rich in terms of biological diversity but poor in the technological means to utilize this diversity, are not to remain mere suppliers of the biological raw materials needed, for example, for pharmaceutical research. Rather, they are to be accorded sovereign rights to "their" biodiversity. They are to grant access to genetic resources but shall have the power to determine the conditions of such access.
Patents and contracts
The grievances that prompted the Climate Alliance to turn more of its attention to the issue of biodiversity were communicated by a German press report and through a statement to the Amazonian press. The first was about a draft contract which the North American drug company Phytera had submitted to the Palmengarten botanical garden in Frankfurt with the intent of procuring plant material from the garden's inventory for commercial research purposes. Phytera also indicated its interest in plants from countries of the South. The Amazonian statement was a protest against a patent which a North American citizen and owner of a plant medicinal company had acquired on a ceremonial plant which is in wide use among Amazonian Indians. The plant is called "ayahuasca" or "yagué", though botanists know it by the name of "Banisteriopsis caapi". Indian healers use this alkaloidal plant for preparing a hallucinogenic beverage through which they gain access to the realm of the spirits. The patent holder declares to have found "Da Vine", an ayahuasca variety, in a back garden in the Peruvian Amazon region. The patent granted to him in 1986 for this discovery bears the registration number 5.751.
Inventories of botanical gardens and indigenous knowledge on medicinal and ceremonial plants both fall directly within the scope of the Biodiversity Convention. At the coming into force of this Convention each member state was obliged to implement rules on access to collections newly acquired by its botanical gardens. These and gene banks are referred to as ex situ institutions in the Convention. Plant material may only be passed on to third parties, this including plant research institutions, if the country of origin gives its consent and its proprietary rights are duly respected. At present most of the accessions still stem from the time before the enactment of the Convention and as such are freely purchasable under its provisions. However this should be interpreted more as a leak in the system than as a call for an unrestrained sell-out of plant collections which were once put under the guardianship of botanical gardens. Gardens from countries of the southern hemisphere which are associated with our gardens via seed exchange would certainly be in a position to criticize such practices, and existing relationships would inevitably be disturbed. Beside this, by purchasing plant material from gardens in the industrialized world the drug industry would be raising suspicions that it was by-passing the proprietary rights of the countries of origin. This is not to mention the proprietary rights of the indigenous peoples from whose land the plants may actually originate.
Several German gardens have meanwhile received offers for the purchase of plant material. It also appears that draft contracts have been submitted to Dutch institutions. And although botanical gardens nowadays could do very well with additional financial support for the upkeep of their inventories, the officials of the Palmengarten went about things warily. Instead of rushing to business they first called to other gardens for a clarification process so as to bring about a consensus on the issue.
For indigenous peoples the Biodiversity Convention constitutes a new platform where they can defend their interests at the international level. In various passages the Convention stresses the importance of indigenous communities for the preservation and environmentally sound, sustainable utilization of biological diversity. In particular it obliges the contracting states to respect and preserve indigenous knowledge, innovation, and practices, to promote their wide application with due participation by indigenous communities, and to ensure that the benefits from such utilization are shared equitably.
The act of granting in the USA a patent on an Indian ceremonial plant or subspecies of such a plant without the Indians even knowing of this is not in the spirit of these provisions. COICA, the umbrella organization of national indigenous associations in the Amazon Basin has branded this as a sacrilege comparable to the patenting of sacramental wine or consecrated wafers used in Christian services. It is true that the patent dates back to a time long before the coming into effect of the Convention. What gives the story its explosive quality, however, is that at the time when the existence of the patent became known the Ecuadorian Government was debating a treaty under which the USA and Ecuador were each to acknowledge the patents of the other party. One can hardly imagine the consequences for the affected indigenous peoples if in this way a US American patent on a ceremonial plant had attained validity in an Amazonian state. The ratification of the treaty was deferred after protests by environmentalists in the Ecuadorian Parliament.
Quite aside from this there is no difficulty in gaining access to ayahuasca without even setting foot in Amazonia. An arboretum on Hawaii, for instance, has ayahuasca in its inventory. This shows that the provisions of the Convention on Biological Diversity are easy to by-pass and that botanical gardens can assume an unfortunate role in this.
A working conference in Frankfurt's Palmengarten
The European Office of the Climate Alliance / Alianza del Clima spread the news about the ayahuasca patent and, in cooperation with the administration of Frankfurt-am-Main and the municipal Palmengarten botanical garden, convened a working conference of German botanical gardens. The meeting took place in the Palmengarten on 29 October 1996 under the title "Biological diversity, genetic resources, and the situation of botanical gardens". The event served to illuminate the situation in which the Biodiversity Convention has put the gardens and explain the legal conditions under which a garden may grant third parties access to its plant material. The idea was to initiate a clarification process between the gardens through which the officials could make themselves familiar with the provisions of the Convention and ultimately agree on a joint position on the matter. In this endeavour the Climate Alliance has undertaken the task of representing the viewpoint of the indigenous peoples and conveying their actual and potential interests. In this way it can act as a mediator between botanical gardens, municipalities, and indigenous peoples. Only very few botanical gardens in Germany are "municipal gardens", i.e., run by a town administration. Most are university gardens, though many are located in cities of the Climate Alliance. The Annual Conference of the Climate Alliance in Bonn in April 1997 will be dedicated to the issue of biodiversity as one of its focal topics. This will serve as an opportunity to deepen the Alliance's contacts to gardens and initiate contacts between gardens and indigenous Amazonian organizations.
The Third Conference of the Parties to the Convention on Biological Diversity
The Third Conference of the Parties to the Convention on Biological Diversity took place in Buenos Aires, the capital of Argentina, from 4 to 15 November 1996. The meeting was also attended by members of the Climate Alliance's Committee and European Coordination Office. The agenda included questions on access to plant genetic resources (Article 15 of the Convention), a matter of concern to "ex situ" collections and thus also to botanical gardens. In a workshop alongside the conference the Climate Alliance presented the ongoing discussion process with botanical gardens in Germany and in this context made a point of explaining the position of the indigenous organizations in the matter.
The conference also discussed the implementation of Article 8 which demands that indigenous, local knowledge should be respected, preserved, and protected and that innovations and practices conducive to the preservation and sustainable utilization of biodiversity should be promoted. It also provides that indigenous peoples should have a fair share in the utilization of plant genetic resources and the benefits derived from this.
Many indigenous organizations are not happy with the Convention on Biological Diversity in all its details, though very few actually oppose it. The most far-reaching demand, which was also defended by the Colombian Indian representative and senator Lorenzo Muellas at the Conference of the Parties, is to ban bioprospecting until certain basic indigenous rights have been recognized. Criticism was also voiced at the preparatory meeting, the "International Forum on Biodiversity and Rights of Indigenous Peoples". This was mainly concerned with the sovereign rights to biodiversity which the Convention has conferred to the Contracting Parties. The demand was that these rights should only be acknowledged if the rights of the indigenous peoples were accepted too. The indigenous viewpoint was presented that biodiversity and the knowledge on its sustainable utilization are inseparably bound to the territory from which they originate. A further point of objection was that protection of intellectual property such as through patents and other titles is tailored to individual property, whereas indigenous peoples would need collective mechanisms for the protection of their intellectual property. Finally greater transparency and openness and a continuous dialogue were demanded in the elaboration of criteria for the implementation of the Convention.
The indigenous representatives finally submitted a proposal to the Conference of the Parties which basically consisted in a demand for the institution of an own open working group which would be vested with a mandate to negotiate and would convene between Conferences. This demand was defended by, amongst others, COICA and the International Alliance of Indigenous-Tribal Peoples, on the grounds that this is the only mechanism by which further-going rights, in particular collective intellectual property rights, can be secured in a supplementary protocol to the Convention. The Climate Alliance endorsed the proposal. Although the Conference of the Parties did not wholly accept the proposal of the indigenous representatives, it at least decided that a one-time workshop will be held to deal with the question of a permanent working group. COICA, too, will continue its efforts in this direction, but it will press for the institution of a working group with a mandate to secure further- going rights, in particular land rights, in a supplementary protocol.