THE ENVIRONMENTAL DEFENDERS OFFICE NETWORK
in response to the
“Public Inquiry: Access to Biological Resources”
Terms of Reference
SENATOR HILL, COMMONWEALTH MINISTER
FOR THE ENVIRONMENT & HERITAGE
Environment Defenders Office (Victoria) Ltd
1/504 Victoria Street
North Melbourne, VIC 3056
Tel: +61 3 9328 4811
Fax: +61 3 9326 5687
3 March 2000
In making this submission, the Environment Defender’s Office Network (‘EDO’) adopts large portions of the intervention prepared by the legal advisor of the Australian Conservation Foundation in this matter without benefit of quotation. While this submission should be read in its entirety, attention of the Reference Group is directed in particular to the new portions of the document in section II: The Regulatory Starting Point for Access and section IV: Principles for a Scheme of Control of Access.
The EDO welcomes this inquiry into a scheme to provide for the effective control of access to biological resources in Commonwealth areas. The inquiry marks a long overdue first step in establishing a legislative framework for implementing Australia’s obligations under the Convention on Biological Diversity pertaining to access and utilisation of biological resources.
There is an increasing pressure from international and national interests to provide access to Australia’s biological resources. Indeed, pressure on Australia to access its biological resources will be particularly burdensome as Australia is internationally recognised for its unique flora, fauna and other organisms. Australia is identified as one of 12 “megadiverse” regions that together host 60-70% of the world’s biological diversity. Further, approximately 85% of our flowering plants, more than 80% of our mammals, 70% of our terrestrial birds, 89% of our reptiles and 93% of our frogs occur no where else on earth.
As custodians of such enormous biological diversity, Australia is under an obligation to conserve this valuable asset whilst managing its use as a resource in an ecologically sustainable way and for the benefit of all Australians. In undertaking this task there is a need to respect, preserve and maintain the knowledge, innovations and practices of indigenous peoples who have maintained a special connection with Australia’s flora and fauna over thousands of years.
II. The Regulatory Starting Point for Access
We take issue with the terms of reference set for this inquiry. In particular, we strongly object to the intended scheme being framed in operative terms that “promotes certainty for industry and facilities [sic] access to biological resources for environmentally sound uses”. Constructing a regulatory scheme that is principally intended to facilitate access to biological resources flies directly in the face of the foremost objective, in relation to biological resources, of both the Environment Protection and Biodiversity Conservation Act 1999 (“the EPBC Act”) and the 1992 Convention on Biological Diversity–“to promote the conservation of biodiversity” from which biological resources come from. If these salutary objects are to be met it is clear that the focus for regulating access to biological resources must restrain rather than facilitate access to these resources.
This is especially so in light of the fact that the EPBC Act is itself inadequate in meeting its own objectives of protecting the environment and conserving biodiversity. In particular, the EPBC Act: (i) is inappropriately constrained in the matters of national environmental significance it can address; (ii) suffers from the ability of the Commonwealth to delegate its new assessment and approval powers back to the States under bilateral agreements; (iii) is drastically undermined by the fact that Regional Forest Agreement areas entirely escape the need for assessment and approvals; and (iv) multiple use, including mining, are allowed in protected areas. Until these serious defects are adequately addressed, the regulations regarding access must be rigorous in their protection of Australia’s biological resources.
III. The Need for a National Legislative Approach
The EDO is also critical of the narrow focus of the inquiry, which seeks to advise on a scheme to “provide for the control of access to biological resources in Commonwealth areas.” Whilst section 525 of the EPBC Act extends the definition of Commonwealth areas to cover the vast majority of Australia’s marine environment (not including coastal waters of the states and the Northern Territory), it fails to include land under the control of the States and Territories and privately owned land.
The narrowness of the inquiry and indeed the proposed scheme itself, is contrary to numerous recommendations calling for a national approach by the Coordination Committee on Science and Technology (“the CCST”), the Australian and New Zealand Environment and Conservation Council (ANZECC) Agencies and the Commonwealth-State Working Group (CSWG) on Access to Australia’s Biological Resources.
The EDO recommends that a National scheme for the control of access to Australia’s biological resources be implemented. The legislative power of the Commonwealth to implement such is clear and certain under the external affairs power in order to implement the Convention on Biological Diversity and address a matter of high international concern.
Indeed, the EDO questions the appropriateness of implementing such an important scheme through mere regulations under section 301 of the EPBC Act. To provide for greater certainty in any proposed scheme we recommend that it be implemented under a legislative regime. To achieve this task, amendment to the EPBC Act would be required. We highlight the legislative amendment to the EPBC Act to incorporate special rules for GMO’s as a comparative example where an amendment to the Act has been deemed necessary. There is no reason why the regulation of access to Australia’s biological resources is less worthy.
III. Intellectual Property Rights
Closely linked to any scheme controlling access to biological resources is the degree of commercial protection given by Australian law to those who discover new biological resources, or manipulate them to create genetically engineered organisms. Under Australian Law it is the protection granted by Patent Law that is most controversial and relevant to this inquiry.
The EDO strenuously objects to patent laws that allow the patenting of components or modification of living organisms. Our objection is based on the following reasons:
· The genetic modification of organisms is not an invention. The information and the process are not novel, nor does mere modification involve an innovative step. It is merely a discovery of the natural function of organisms. Indeed, this is the constant cry that producers of genetically modified products use in order to claim that labelling of products containing genetically modified products is not warranted – “there is nothing new or novel about it”.
· To patent a living organism or biological resources is to treat them as a mere means of production. To do so degrades its life.
· The Patent system favours larger corporations over traditional users of biological resources. Patenting systems around the world are littered with examples of major corporations patenting components or variations of living organisms that have been used by traditional breeders or indigenous peoples for thousands of years.
IV. Principles for a Scheme of Control of Access
It is not the purpose of this submission to comment on or propose a particular scheme for access to Australia’s biological resources. Instead, the EDO is of the view that it is more beneficial to propose a set of common principles, which should underpin any such scheme.
The EDO believes that in order for any regime regulating access to be effective, it must explicitly require that all decisions about whether to grant access:
1. be consistent with the principles of Ecologically Sustainable Development (ESD), including a requirement that the precautionary principle be employed in decision-making.
2. allow access only when there is clear, convincing and sufficient evidence that the access poses no significant risk to the environment, biological diversity, and the health and safety of people and animals.
3. be consistent with existing Commonwealth, State and Territory environment protection legislation.
4. be allowed only after a rigorous environmental impact assessment process that:
· does not allow environmental impact assessment (EIA) to be avoided through discretion.
· provides for standard assessment requirements for any proposal for access.
· provides for public consultation (particularly consultation with affected communities) on the level of assessment.
· provides mechanisms for public consultation (particularly consultation with affected communities) on the proposed access ensuring that public notification takes place through national and relevant local newspapers and the Internet and that all relevant information is available to the public to provide for informed comment.
· requires public comment to be taken into account in any decision making process.
· provides for mandatory public notification of a draft assessment.
· requires cumulative impacts to be taken into account when making the decision.
· requires the assessment to address all stages of the development of biological resources, including the collection of samples, screening research and product development.
· specifically requires impacts on threatened species to be addressed.
· requires the decision to grant access and any conditions attached to the approval to be publicly available.
· allows any person to appeal on the merits against EIA decisions.
· allows any person to apply for judicial review of administrative decisions made in relation to the EIA process.
6. provides mandatory conditions for any access that is permitted which require the avoidance of environmental impacts and promotes the conservation of biological diversity.
7. ensures that benefits arising from a grant of access flow to the environment.
8. provides for sharing of information between the Commonwealth, States and Territories on biological resources and their conservation and management.
9. provides or adequate mechanisms for monitoring, evaluating and enforcing compliance with conditions of access.
10. establishes a mechanism for periodically reviewing all access permitted and the conditions that are attached to access..
11. ensures that a condition of access is imposed which requires any intellectual property rights sought pertaining to any component, variation of or process involving a biological resource accessed, be first subject to the approval of the authorising government (or other authority) after a rigorous assessment process is undertaken.
Whilst the EDO welcomes this enquiry, it is important that there be further meaningful public consultation on this issue. Clearly, the Access Taskforce should prepare a detailed consultation paper following receipt of the submissions on the terms of reference. This consultation paper should list a number of alternative schemes, incorporating the recommendations made to the inquiry. The consultation paper should invite public submissions on the proposed schemes providing at least eight weeks notice before submissions are due. The invitation calling on submissions should be published in national and appropriate local newspapers and on the Internet.