Legal Regime of Biodiversity Conservation

So much has been discussed about the biodiversity and their importance to the mankind. Its importance in terms of its value to human beings as medicines, life saving drugs, tonics, antioxidants, food items, food supplements etc. and in terms of its potentials to change the socio economic scenarios of poor villagers can never be over emphasised. Herbs and plants such as Jeevani of Kani Tribes of Kerala, Ginseng of Korea, Cinchona, Atropa, Neem, etc. and their preparations are the miracle drugs which are life saving as well as having immense economic potential. In our place, there is a high degree of biodiversity both faunal and floral, because they exhibit a high degree of endemism. Besides, they also hold important positions in the process of evolutions. Much also have been said about the global efforts on biodiversity conservation. A few days back we had COP 11 (Conference of Parties, 11) on CBD at Hyderabad. I do not know why we still call the assembly a COP as after we have the Protocols of the convention, it should have been called MOP. As we are aware, one of the convention borne out of Rio Summit (Earth Summit, 1992) is the Convention on Biodiversity (CBD); other two being the UNFCCC (United Nations Framework Convention on Climate Change) and UNCCD (United Nations Convention to Combat Desertification). Personally, I feel that the world community is now well equipped with so much of conventions and protocols, Acts and Laws, constitutional provisions etc. and now the necessity is to translate them in to actions in the field level. Besides CBD, other two conventions of the UNFCCC and its protocols, UNCCD and its decisions in 10 COPs all contribute ultimately to the conservation of biodiversity and environment.

The implementation mechanism of these conventions are their protocols (for CBD, there are two protocols, the Cartagena Protocol and Aichii Nagoya Protocol). The signatories are legally bound to follow the decisions of the conventions and the goals of the conventions are achieved through these protocols. The member countries have to have a strong legal framework for the implementation of the convention and its protocols. So, the strength of the convention and its protocols lies in the legal back up in the member countries and member countries have to keep pace with the change and developments in the biodiversity sector.

One thing we have to keep in mind. The conventions can not create miracles, but efforts at ground level can. Readers can have an idea of how far we are keeping pace with the global efforts and really trying to conserve our precious biodiversity resources through legislations. It can be seen that there is a dedicated Act for biodiversity protection in the name and style of Biological Diversity (Protection) Act, 2002. Again the biological diversity is found everywhere, anywhere and in all natural entities. Hence, certain other laws other than biodiversity specific ones also act towards conservation of biodiversity and all these laws constitute the legal regime of biodiversity conservation. A checklist of such legal provisions is given below:

1. Local Acts & Laws:

a. Indian Forest Act, 1927: The Reserved Forests and Protected Forests constitute major portion of natural forests, covering 42.5 million hectares of Reserved Forests, 21.39 mill hectares of Protected Forests and 13.30 million hectares of Unclassed Forests against 328.72 million hectares of total Geographical area of the country. Protection of these forests are important from the point of conservation of biodiversity. Though, IFA is not a biodiversity protection act, it provides blanket protection to all forest produces whether found in or brought from a forests and hence, it quite relevant to conservation of biodiversity. The acts prohibited in reserved forests are in Sec 26, and for Protected Forests, it has been specified in Sec 30, 32 and Rules made there under, Sec 76 and Rules made thereuder are important provisions connected with conservation.

b. Wildlife Protection Act, 1972: Wildlife, both wild plants and wild animals are protected under this Act. The wildlife in PAN and outside it are all protected. As degree of protection is higher in the PAN and under WLPA, more biodiversity is in PAN. Regarding protection of animal diversity, all the wild animals under Schedule I to IV and all plants under Schedule VI are protected under this Act wherever they are found; inside PAN, inside forests or outside forests, inside private land or not. Under this Act, Sec. 9 (Prohibition of hunting), Sec 27 to 34 (for protection of Sanctuaries), Sec 35 (for protection of National Parks), Sec 39 and 44 (prohibiting trade and possession of wild animals and wildlife articles) are important provisions,

c. Environment Protection Act, 1986: Though, this act mainly deals with the pollution of environment, this Act, particulary Sec 3 (1) and (2) are for declaration of Eco Sensitive Zones, which are regulated areas for human activities. This provision contribute towards conservation of biodiversity in such zones. We have a number of Eco Sensitive Zones with regulated development activities declared under this provision.

d. Biological Diversity Act, 2002 is dedicated for protection of biodiversity and community and traditional knowledge. Sec 3 (1) and (2) and Sec 20 of the Act regulate the access to the biodiversity, either the resource or the knowledge by the people from outside the country without prior approval of the National biodiversity authority and Sec 7 prohibits access to the biodiversity resource or knowledge without prior intimation to the State biodiversity Authority. Sec 6 prohibits any person to apply for registration of IPR based on biodiversity of India without prior approval of the NBA. Sec 4 prohibits transfer of the results of research to a person not a citizen of India. Sec 40 provides for constitution of Biodiversity Management Committees which are local level authorities in terms of biodiversity resources and they shall work with the State Biodiversity Boards. The Biological Diversity Act has the provisions for setting up the National Biodiversity Authority and State Biodiversity Boards which are the authorities with specific mandate of protection of biodiversity. This Act has penal provision of 5 years imprisonment and fine up to 10 lakhs.

Another important provision of the Biodiversity Act is the provision for setting up the Biodiversity Heritage Sites under Sec 37 of this Act. Decalring a site so shall give immediate measures for protecting and improving the site form biodiversity point of view in short term with ultimate long term measure of upscaling management of the site by involving the local community. As Biodiversity Heritage Sites are declared under this Act and a different from World Heritage Sites which is declared under the convention.

e. Patents act, 1970 and IPR: The Patents Act ensures that the right of the owner is not improprietorily used by others for their personal gain. The provision of this act are very much aaplicable for plants as the herbal preparations and herbal neutraceuticals are becoming more and more popular. The Geographical Indications of goods (Registration & Protection) Act, 1999 popularly known as Agriculture Patents Act, more specifically deals with geographical origin of species and protects the ownership from misappropriation by foreign companies.

Regarding global warfare of Intellectual Property Rights (IPR), we have awakened to it, albeit a bit late. It is now taken care at country level. India has already come up with some legislation to protect IPR and traditional knowledge and it is a good sign.

f. Forest Conservation Act, 1980: The FCA, particularly Sec 2 of the Act restraints deforestation, deforestation and breaking up of forest land for non forestry purposes such as constructions, mining and dams and so on. This Act, perhaps has been the most effective act in terms of protection of natural forests. Protecting natural forests is most important aspect as they are the house of biodiversity and plantations cannot replace natural forests in terms of biodiversity and hence whatever natural forest is left is to be protected.

2. International Conventions:

a. CITES (Convention on International Trade on Endangered Species of Fauna and Flora): It is a convention to restrict and regulate the trade in endangered species. The World Conservation Union (the IUCN International Union for Conservation of Nature and Natural Resources) publish status of species Rare, Endangered, Threatened, Extinct etc. Red Data Book is the book of such species. Under CITES, the plants are grouped in to Appendix I, II and III as per their threat status and prescribes different levels of restrictions. Of the 193 member countries of the UN, 176 countires are signatory to the convention. India has 13 Appendix I, 488 Appendix II and 6 Appendix III species. Important among them are Kuth, Agar, Cycad, Ladies Slipper, Sarpagandha, Tree Fern, Red Vanda, Gnetum, Podocarpus, Red Sanders, Taxus, Vanilla, Blue Vanda, Dioscorea, Dendrobium etc.

b. Convention on Biodiversity (CBD)- As mentioned above, it is a convention under Rio Submit/Earth Submit, 1992. The CBD adopted two protocols, the Cartagena Protocol on Biosafety and the Nagoya Protocol on Access to Genetic Resources. A brief of these two protocols are as follows:

i. The Cartagena protocol is also known as Biosafety protocol or Advance informed Agreement (AIA) Procedure for protection of biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology. It was passed on 29 January 2000, in the Conference of the Parties to the Convention on Biological Diversity and came in to force on 11Sept, 2003. This protocol also provides for establishment of a Biosafety Clearing-House to facilitate the exchange of information on LMO (living modified organisms).

ii. The Nagoya Protocol is also known as ABS Protocol. It is a transparent legal framework on Access to Genetic Resources and the Benefits Sharing on Fair and Equitable basis and Sustainable Utilization (ABS) to the Convention on Biological Diversity. It has provisions for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources. The Protocol was adopted on 29 October 2010 in Nagoya, Japan. The ratification of the same is going on with member countries and will enter into force 90 days after the fiftieth instrument of ratification.

c. World Heritage Convention:

i. The World Heritage List includes 962 properties forming part of the cultural and natural heritage which the World Heritage Committee considers as having outstanding universal value. As of September 2012, 190 States Parties have ratified the World Heritage Convention. By being in the Heritage List does not get any extra legal provision or assistance from UNESCO or other bodies, but being in this list attracts attention and investment from other institutions and thus upscales the protection and conservation efforts.

ii. Heritage Sites: Portions of the Tropical Rain Forests of Western Ghats has come under World Heritage Sites under World Heritage Convention. Other heritage sites are Nanda Devi & Valley of Flowers, Sunderbans, Kaziranga National Park, and Keoladeo National Park. There are other proposals which are still in the Tentative Lists awaiting comments and approval. They are Great Himalayan National Park, Kangchendzonga National Park, Namdapha National Park, Wild Ass Sanctuary, Little Rann of Kutch, Neora Valley National Park, Wild Ass Sanctuary, Little Rann of Kutch etc.

iii. Biosphere Reserves: MAB Programme. The Biosphere Reserves are recognized within the framework of UNESCO’s Man and Biosphere (MAB) Programme. They are rich in biological and cultural diversity and encompass unique features of exceptionally pristine nature. The goal is to facilitate conservation of representative landscapes and their immense biological diversity and cultural heritage, foster economic and human development which is culturally and ecologically sustainable and to provide support for research, monitoring, education and information exchange. The Scheme is a pioneering effort at pursuing the increasingly difficult yet urgent task of conserving ecological diversity under mounting pressures. Ultimately, such BRs are to be included in the World Network of Biosphere Reserves. In India, the Nanda Devi, Sunderbans, Namdapha, Nilgiri, Manas etc. are Biosphere Reserves (they are in the Heritage List too).

3. Policy & Constitutional framework:

a. Forest is under concurrent list to draw efforts of both central and state government. The IFA itself and WLPA, the FCA are all central acts. Further, the 42nd amendment of the constitution inserted a provision as directive principle as Article 48 A. It reads as follows: “48A.- Protection and improvement of environment and safeguarding  of forests  and  wild  life.-The State shall endeavour to protect  and improve the environ- ment and to safeguard the forests and wild life of the country.”.

b. The Protection of Forest and wildlife have been made fundamental duty under constitution for the citizens. Though the fundamental duties are not legally binding for a citizen, it shows the moral obligation of the citizens. The same was also inserted in the 42nd Amendment of the Cosntitution as Art. 51 A (g). It reads as follows: “51A. Fundamental duties.-It shall be the duty of every citizen of India-. (g) to protect and improve the natural environment including forests, lakes, rivers and wild  life, and to have compassion for  living creatures;”
c. National Forest Policy, 1988: The forest policy is not exactly a legal provision but the foundation of legislation. The laws are normally framed to implement a policy.
—to be contd

25-Nov-2012 / 01:30 AM / Akham Bonbirdhwaja Singh / 0 Comments