Posted 7:13 PM by Luigi
PGR Law and Policy Workshop in Pohnpei

by Dr Mary Taylor, RGC Adviser, SPC.

Introduction

A one day workshop on law and policy issues affecting the management (conservation and utilization) of plant genetic resources was held in the Agriculture Headquarters in Kolonia in Pohnpei. There were a total of 27 participants (including the resource persons) representing both the public and private sector.

Summary of presentations

Presentations were given by Ishmael Lebehn, Acting Secretary to Economic Affairs for the FSM National Government, Marion Henry, Deputy Assistant Secretary for Fisheries, FSM Department of Economic Affairs and Mary Taylor, Regional Germplasm Centre Adviser, Secretariat of the Pacific Community.

The presentation from Mr Lebehn discussed both the Federated States of Micronesia (FSM) national laws and also the State Laws. National laws include the Plant and Animal Quarantine Law, for the protection of agriculture and the general well-being of FSM, and also the Food Safety Law. The States have authority over their resources with laws on quarantine, conservation, environment etc. FSM has ratified the Convention on Biological Diversity (CBD), and are working to fulfill their obligation to the Cartagena Biosafety Protocol, through developing a biosafety framework under the UNEP-GEF project. The problem in FSM, as with many Pacific Island countries, is the lack of resources to implement these agreements. There is an officer in the AG office with responsibility to develop an access and benefit sharing law – this is being developed initially at the national level and will then be discussed at the State level later.

The presentation from Marion Henry focused on the CBD and its implementation. There was some concern that much had yet to be done in this area (as with many countries in the world). The State has the responsibility for managing the biodiversity within the State and the marine waters to the edge of the Territorial Sea (12 nautical miles) whereas the FSM national government has responsibility for managing the conservation of all natural resources within the 200-mile limit, that is, the Economic Exclusion Zone (EEZ). The FSM national government sign international agreements but then to a large extent it is up to each State to implement and enforce. With bio-prospecting, an import permit can be obtained from the Historical Preservation Office (FSM National government), but the States also issue import permits. All the States have constitutions which respect the conservation and sustainable use of genetic resources, and traditional rights and practices, but there is no mechanism for access and benefit sharing, and State constitutions can vary with the different States.

The presentation from Mary Taylor looked at the historical context of the laws and the policies which impact on plant genetic resources management, highlighting that legal agreements tend to reflect the current circumstances, hence the diversity of existing agreements. Some time was then spent detailing the major instruments, those of protection, that is, IPR agreements and those of conservation and use, that is, the Convention on Biological Diversity (CBD) and the International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA) – focusing on the background under which they were negotiated, the negotiators and their objectives. The discussion on IPR agreements defined intellectual property rights, discussed the implications of the TRIPs agreement and outlined the criteria necessary for patent legislation and plant breeders’ rights. The International Convention for the Protection of New varieties of Plants Act (UPOV) was described as an example of a sui generis IPR protection system, and the whole issue of the suitability of Plant Breeders Rights (PBRs) in the Pacific was raised. The discussion on the CBD considered the objectives of the CBD, and what was happening in the Pacific region – highlighting that although 14 countries are Parties to the CBD, countries were still in the process of developing ABS regimes. The ITPGRFA was also discussed – what are the advantages to the countries, and are there any disadvantages.

Access and Benefit Sharing (ABS) in action

The meeting discussed the presentations and then focused on what were the main issues for Pohnpei. These were:

1. Ratifying the International Treaty.
2. Access and benefit sharing for Karat banana – a banana variety rich in carotenoids. Since a paper was presented at an International Banana Congress in Malaysia in 2004 there has been considerable interest in the Karat banana from outside of the Pacific region.

The meeting decided that determining a mechanism for access and benefit sharing (ABS) was of prior importance because of the keen interest in Karat banana, and so the remainder of the workshop time was devoted to this issue.

The ABS exercise was a case study with Karat banana as the germplasm of interest. The meeting divided into two groups. One group (Group A) represented an overseas institute, wanting to access Karat banana – their aim was to extract the gene or genes responsible for the high carotenoid levels. They would then use the extracted gene(s) and insert into varieties that were important in other countries – with food and nutritional security being the main aims – commercialization was not a factor for consideration. This group had to determine the conditions they were prepared to offer for germplasm access. The other group (Group B) represented the country or State (such as Pohnpei) with sovereign rights over Karat and therefore had to decide on the ABS conditions for accessing the germplasm. The groups were given 30 – 45minutes to formulate their ideas and then there was an open debate between the two groups. Some very interesting issues were raised:

• Technology transfer and capacity building – Group A offered training in genetic manipulation and assistance with the establishment of basic facilities. Group B argued that this level of technology was not required in their country – could Group A help in some other way – with training that was more appropriate. Shortage of banana planting material was identified as a constraint to local growers – could the institute represented by Group A assist with the establishment of a micropropagation facility and provide the necessary training. Another option suggested was support for value adding – both training and any infrastructure required. As Karat banana was the desired germplasm – a baby food production unit was suggested as appropriate value adding.
• Group A wanted to patent the process – this raised the question of patents – if the process is patented, does the same patent also cover the product? What was not raised by both Groups but was raised by a workshop participant from the floor was who owns the carotenoid gene(s). This stimulated much discussion - Group B felt that the rights to any genes from the Karat banana belonged to the country, whereas Group A felt that because they had extracted the gene, and the resources involved, they should at least have some rights.
• Group B requested and Group A agreed that at all times the sovereign rights of the country over the Karat germplasm , that is, the banana itself, would be acknowledged.
  Group A proposed scholarships for students from the country – although it was agreed that this could be a good form of capacity building, it was noted that (a) the scholarships would have to be relevant and (b) those receiving scholarships would have to be employable on return. There would be no point in providing scholarships for Masters and PhDs if positions requiring and using these qualifications were not available in the country.
• Both groups agreed that initially a contract would be drawn up based on research only and that if there was any indication of commercialization then a second contract would be required. This debate raised some interesting points – although the aim of the research is initially food security, what is the market potential? How much control would there be, or could there be over the varieties with the newly inserted carotenoid genes, especially as far away as Africa. Could these new varieties be important for value adding – was there a need for a market study to be carried out by the overseas institute to look at these issues? Is there also an issue with import substitution?
• The question of breach of agreement was raised – if this happened, what would be the arbitration process. The suggestion was made that this could be addressed by the representatives for the overseas institute, the country and a third party.

Action Plan

After the group work the workshop participants discussed what could be done to address some of the issues the one-day workshop had raised. There was obviously a need to make progress in some of the areas that had been discussed. These were:

• Access and benefit sharing frameworks – there is an officer in the FSM national government’s AG office responsible for development of an ABS mechanism, yet little information has been forthcoming on progress. The States need to get an update on progress made in this area.
• There are many researchers currently wanting access to both the marine and land resources of Pohnpei. Permits can be issued by both the State and the national government through the Historical Preservation Office. However the correct protocol to use is not clear and also the issue of harmonization between the protocols requires attention.
• It is essential that there is cooperation between all the relevant agencies to achieve harmonized outcomes – this highlighted the possible need for an inter-agency committee on IPR/ABS issues.
• There is some degree of urgency for Pohnpei State to decide on an ABS mechanism for Karat banana as there are already four requests in the pipeline for access to the germplasm. Obviously any ABS mechanism has to be established in collaboration with the national government
• The Leaders meet regularly for Economic Policy Implementation Council meetings – this could provide a forum for “educating” the decision makers on these IPR issues
• There is a need for more information on these PGR law and policy issues – general circulation of information is poor at all levels.
• SPC Genetic Resources would provide information on PGR law and policy issues. Information is already distributed on “PGR news from the Pacific” through PAPGREN but specific information could be supplied on request.