ABS Management ToolInternational Stakeholder Workshop

27 and 28 November 2006, Heredia Costa Rica

Sponsored by SECO and UNU/IASOrganized by IISD, Stratos Inc., Jorge

CabreraABS-MT REVISED VERSION

ABS-MT: Working Draft distributed at the ABS WG in Thailand, 2005.

First draft was widely circulated and presented in several meetings/side events with different stakeholders for obtaining feedback for improving the MT.

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Improving the MT

Based on lessons and feedback from testing and outreach, the ABS-MT has been revised to:

Focus on core issues for voluntary compliance with the Bonn Guidelines, not necessarily to cover a long list of ABS issues;

Provide useful guidance to good practices related to core issues and successful ABS activities;

Provide guidance on basic conditions for getting started;

Provide a more clear and practical approach for its use, orienting genetic resource users in ABS negotiations; and

Be sufficiently flexible to allow genetic resources users to apply the guidance provided in the MT in the context of different situations (negotiations) while safeguarding the interests and needs of the providers of genetic resources

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Improving the MT

Avoid the redundancy found in the first Working Draft MT some Guidance of each Standards or among different Standards

Simplify the language used to provide more clarity about the scope/reach of the outcomes activities

Maintain confidence of the provider of genetic resources about the legitimacy of MT content

Provide practical examples on how the MT content has been applied successfully or successful ABS contracts-permits that are consistent to the MT guidance and content. This version does not provide the examples, but suggests where and what examples could be useful to provide more practical orientation to those who want to use the MT.

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Structure of the Revised ABS-MT

Management Process

Self Assessment or Verification Worksheet

Supporting Tools and Resources

Voluntary Compliance Standards

Practice Guidance

StandardsGuidance

AdditionalGuidance

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Getting Started: basic conditions for the use of the MT1. Willingness to participate in the abs negotiations Both the provider and the user must have the willingness to

participate in good faith in the ABS negotiations

2. Capacity for Negotiating and Decision Making For many governmental authorities, communities and indigenous

peoples, ABS is an unknown legal and administrative area the lack of capacity (and the lack of trust in their own capacities)

prevents potential providers from being engaged in ABS negotiations

3. Minimum legal framework for using MT A regulatory framework that enables access to genetic resources to

take place. That is, there is no de facto moratorium or prohibition on access.

A process for the formal recognition and approval of requests for access and use must be in place

legal framework in place that effectively governs the negotiation and implementation of contracts, including dispute resolution

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Structure ofProposedVoluntary

Compliance Standards

+ Guidance

Voluntary Compliance Standards

Prior Informed Consent

Prior Informed Consent

Mutually Agreed Terms

Mutually Agreed Terms

Benefit SharingBenefit Sharing

Traditional Knowledge

Traditional Knowledge

Conservation & Sustainable Use

Conservation & Sustainable Use

Community and Indigenous

Participation

Community and Indigenous

Participation

Criteria

Guidance

Tips for Grey Areas

Criteria

Guidance

Tips for Grey Areas

Desired Outcomes

Guidance

Tips for Grey Areas

Desired Outcomes

Guidance

Tips for Grey Areas

ABS Practice Guidance

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1. PIC

1.1 PIC is prior, informed and consented in intent and practice.

1.2 PIC is obtained in writing from the competent government authority, and from the relevant stakeholders, including local communities and indigenous peoples.

1.3 PIC is linked to a commitment to negotiate fair and equitable benefits for each stage of access and use. Genetic resources are used only for the purposes expressly outlined at the time of PIC negotiation, and a new prior informed consent is given for any use that differs in type or scope from that originally outlined. An agreement with the provider that reflects the terms and conditions of PIC including, inter alia, terms and conditions regarding benefit sharing is concluded.

1.4 Where access is obtained from an ex situ collection, including from one or more intermediary, documentation is provided that appropriate PIC exists and that the transaction and intended use are consistent with that PIC, unless there is clear and reasonable explanation that this is not feasible.

Voluntary Compliance Standards

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Voluntary Compliance Standards

2. Mutually Agreed Terms (MAT)

2.1 MAT are negotiated in a manner that builds confidence and a relationship of trust between owners, managers, or custodians who are the providers and users of genetic resources and that established the basis for a long term, transparent, and respectful relationship and communication between them.

2.2 MAT are negotiated in good faith by both users and providers, respecting the terms and understandings of prior informed consent, allowing benefits to flow to the owners, managers or custodians of the genetic resource, and facilitating access.

2.3 MAT take into account the differences in capacities and needs of the providers, including governments, and indigenous and local communities, holders of ex situ collections, and the intended user organizations, to allow fair processes of negotiation and equitable outcomes in the benefits to be shared.

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Voluntary Compliance Standards3. Benefit Sharing

3.1 A fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge is provided in order to support the compliance with the three objectives of the Convention on Biological Diversity.

3.2 Benefits are provided according to the specific stages of use set out in the PIC agreement (research, discovery, development and commercialization) and renegotiated when the type of use is expected to change beyond the agreed PIC.

3.3.Benefits are shared fair and equitable with all those whohave been identified as having contributed to the resource management, scientific or commercial process, including goverments at different levels, and/or indigenous peoples and local communities and relevant stakeholders who are the owners, managers or custodian of the genetic resources.

3.4 Benefit Sharing arrangements are implemented in good faith, respecting the terms and understandings of prior informed consent agreed for use of the genetic resources collected, and the terms and conditions negotiated in the mutually-agreed terms.

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ABS Practice Guidance

Guidance on: Compliance Standards Additional Practices

Not fully developed yet The guidance can serve:

as a menu of steps or checklist for guiding a genetic resource user or provider organization’s ABS management practices;

a set of indicators for reporting or verification of these practices; and

Tips/practical solutions to challenges/grey also presented.

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ABS Compliance Standard Guidance

PIC

Obtain and comply with all applicable laws and regulations in force in the Country regarding PIC. Meet the identified requirements to comply with PIC Obligations.

Identify the national competent authority and indigenous and local communities and relevant stakeholders and, where possible, determine ownership of genetic resources. In accordance with national legislation PIC may be required from different levels of government.

Ensure compliance with any customary law, traditions or local processes related to the application for and approval of access, to the extent possible.

In the case of genetic resources provided by an intermediary require prove that the organization supplying genetic resources has title to the materials and that it is authorized to supply them for product discovery and development.

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ABS Compliance Standard Grey Area Tips

PIC

What to do if the provider/authority does not have the legal or scientific capacity to negotiate an ABS agreement?

In some cases there will be a need to have independent legal, financial and scientific advice available to the provider of genetic resources, in order to level the playing field with users during negotiation. Be sure that your counterpart has independent legal advise. Monetary contributions from users to providers may be used for the providers to obtain independent legal or other advice. Pro bono, networks of ABS legal experts are emerging. You may find some assistance, for instance, with the Public Interest Intellectual Property Association (PIIPA).See www.piipa.org

To be developed further e.g. short case studies of private and public access where more than one “provider” was involved e.g. communities.

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ABS Compliance Standard Guidance

Benefit Sharing

Determine the benefit sharing mechanisms jointly between the user and the provider organizations, depending on the types of benefits and specific conditions

Take into account the expressed desires and needs of the other organization/community and its capacities when negotiating benefit sharing provisions, in fair and constructive manner, not to put them at a disadvantage

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ABS Compliance StandardGrey Area Tips

Benefit Sharing

How to address unrealistic expectations on the magnitude and kinds of benefits to be shared

Sharing information honestly about the potential and real benefits to be received is advisable

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Additional Practice Guidance

CONSERVATIONDesired Outcomes e.g.

The collection and/or harvest of wild genetic resources is conducted, using a precautionary approach, at a scale and rate and in a manner that does not exceed the sustainable yield and that does not impair ecosystem structure, functions and services

Domestication and cultivation/captive breeding of genetic resources is conducted in a manner that maintains the genetic variation of the population or diversity of the gene pool

Guidance e.g.

Assess the existing knowledge of resources being accessed and the likelihood that new information about biodiversity will arise or be needed.

Assess knowledge of conservation status of the species and population to be sampled/collected, prior to granting of PIC, as well as information on its habitat, ecology and any critical environmental concerns, including other uses/pressures on the resource.

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Additional Practice Guidance

Traditional Knowledge

Desired Outcomes e.g. The integrity of the traditional knowledge associated with

genetic resources that are accessed is respected by the collector of genetic resources and other users. The collection and use of TK is made in such a way as to not affect the integrity, sense and value of the TK, so as to not denigrate it

Fair and reasonable effort is made to preserve, respect and maintain traditional knowledge associated with the genetic resources that are accessed

Guidance e.g. Put in place a process to obtain PIC to use TK associated with

genetic resources and promote participation of indigenous peoples and local communities

Demostrate respect and understanding of TK by applying principles on integrity, protection and preservation, compensation/benefit sharing

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Management Processes

Documentation and Information

Preparing and maintaining good documention is an essential aspect of negotiating and implementing ABS agreements

Documentation of the ABS negotiation process and of its results needs to be maintained by both user and provider organizations

Parties to an ABS agreement should include reporting requirements and milestones in the MAT/contract for: progress reporting between the user and provider monitoring that conditions of access and use are being met monitoring that provision of benefits is being implemented.

Broader public reporting is encouraged

The balance between maintaining confidentiality of sensitive information, and transparency, needs to be a consideration.

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Management Process

Certificate of Origin/Source/Legal Provenance

The MT management process could be a useful source of documentation and tracking practices for a potential certificate to be developed in the context of the International Regime Negotiations

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Self Assessment or Verification Worksheet

Provides a tool for checking that ABS compliance standards are being met Through self-assessment by the user of the ABS- MT By a verifier, depending on how the ABS-MT is

implemented

Practice guidance could be turned into indicators if the ABS-MT is used as a formal standard

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Supporting Tools

Material Transfer Agreement:

Three options to provide a practical MTA tool in the ABS-MT:

Provide links to existing MTAs (e.g. on WIPO Database, used in CGIAR centres, Uniform Biological Material Transfer Agreement, a future BIO model MTA, others)

Provide a basic outline for an MTA, adjusted to the content of the ABS-MT. (e.g. a Contract Outline)

Develop a specific model MTA for the MT

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Supporting Tools

User and provider guidance

Information Requirements for PIC

List of Potential Benefits

Links to specific guidelines. e.g. Botanical Gardens Principles, MOSAICC, etc.

Useful links to resources (including legal data bases).

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For Discussion

1) Ho is the user of the MT and for what purposes?

2) Is the structure and content of the MT useful and practical?1) Does it meet the needs and challenge from today?2) How can the ABS compliance standards be

improved – PIC, MAT, Benefit Sharing?3) How can the ABS practice guidance be improved?

3) Comments on:1) Management Processes2) Self-assessment or Verification Worksheet