South Africa is rich in biodiversity and is regarded as the third most biologically diverse country in the world. South Africa has a relatively sound knowledge of its resources, adequate scientific capacity and infrastructure, and managed protected areas. As a result, there have been a number of bilateral agreements between multinational corporations and South Africas research institutions regarding access to its indigenous species. These agreements have been reached in the absence of a legislative framework on access and benefit-sharing (ABS). However, South Africa is now drafting legislation that will fill this vacuum. It should be noted that although much has been written on how benefit-sharing should work, most countries lack the scientific expertise to determine limits for the sustainable use of their resources. In 1998, the World Wildlife Fund for Nature (WWF) examined the experiences of ten countries and discovered that many of them were experiencing problems in developing and/or implementing a legislative framework for access to genetic resources and benefit-sharing. South Africa is no exception.
South African legislation on ABS
ABS in South Africa is addressed in the White Paper on Conservation and Sustainable Use of Biological Diversity (1997) and the National Environmental Management Act, known as the NEMA (2000 draft). In November 1997 South Africa ratified the Convention on Biological Diversity (CBD).
White Paper on Conservation and Sustainable Use of Biodiversity (1997)
ABS is one of the goals of the White Paper on Conservation and Sustainable Use of Biological Diversity (1997), which was drafted in accordance with the objectives of the CBD. One of the policy objectives stated in the White Paper is to "control access to South Africas indigenous genetic resources through the introduction of appropriate legislation and establishment of institutional structures". In fact, the overarching objective is to "ensure that benefits from the use and development of South Africas genetic resources serve the national interest". To achieve this objective, the White Paper stipulates that an "efficient permitting system whereby authorization is required for the collection of any biological or genetic resources to be used for research, trade or commercial purposes" be developed and implemented.
National Environmental Management Act (2000 draft)
Regulations pertaining to the institutional framework regarding access and benefit-sharing in South Africa have been outlined in the Biodiversity Chapter of the National Environmental Management Act, best known as the NEMA (2000 draft), and can be found at the National Department of Environmental Affairs and Tourism (DEAT), under the Biodiversity Management Directorate.
The objective of the ABS part of the legislation is "to regulate access to biological resources and knowledge, practices and innovations associated with such resources and to ensure the fair and equitable sharing of environmental, economic and social benefits arising from their use". The ABS regulations apply to indigenous biological resources (wild, domesticated, in situ or ex situ), landraces, knowledge, innovation and practices associated with biological resources and ex situ collections assembled before and after the CBD. ABS regulations do not apply to biochemical or genetic material of human origin, the exchange of biological resources among local communities, or associated knowledge and innovations resulting from non-profit-making practices, uses or customs.
Access to biological resources and/or knowledge associated with such resources for academic research or commercial purposes is prohibited unless a permit has been obtained. The procedure and associated channels that must be followed to obtain such a permit are outlined below. The applicant can be requested to submit additional information. The South African National Bioinformatics Institute (SANBI) evaluates the application and either rejects or accepts it, taking into account the following (and perhaps other) factors:
compliance with the provisions of the NEMA;
the extent of the threat faced by the species concerned;
the benefit to be derived from the use of that species; and
applicable international laws.
The applicant is required to conduct an environmental impact assessment where the proposed activity may have a potentially negative impact on the environment, socio-economic conditions and cultural heritage. If a permit is sought for commercial purposes, then SANBI, after evaluating the application, refers it to the Bioprospecting Committee. The access permit stipulates:
the species for which the permit is granted;
the activity for which the permit is granted;
the time period within which such an activity is to be carried out; and
any conditions with which the permitted activity must comply.
Permits for academic research and commercial purposes may only be issued once an appropriate access and benefit-sharing agreement has been developed and concluded. A research permit is valid for five years and is renewable. A commercial permit is valid for three years and is renewable. An access permit is not transferable. Agreements for access to biological resources and associated knowledge shall:
comply with any criteria and minimum terms and conditions that may be prescribed;
provide for mutually agreed terms and conditions for the fair and equitable sharing of benefits arising from the use of the resources, including the use of derivatives and synthesized products; and
serve national interests.
Other regulations in the NEMA include the following:
Import into and export from South Africa of biological resources is prohibited unless SANBI issues a permit to allow such import or export.
With regard to tracking and management, the applicant is expected to "make reasonable and sincere efforts to record and maintain data on the acquisition, use and benefits arising from the use of biological resources".
Shortcomings of the NEMA (loopholes identified during consultation meetings) include the following:
There is no intellectual property rights (IPR) system to deal with the protection of animal genetic resources.
Monitoring adherence to benefit-sharing agreements can be difficult if the benefits materialize only 10-20 years later.
Guidelines are required to establish mutually agreed terms and prior informed consent.
Measures are needed to minimize the possibility of a research permit being used for commercial purposes.
It must be stressed that this text was taken from the first draft of the NEMA, which was only intended for a specific focus group and not for public comment. The bill has not yet been tabled in Parliament. It is still in its preliminary stage and is currently being revised.