Paradoxes of ratification: The impact of the Nagoya Protocol on Brazilian biodiversity policies Flavia Donadelli Thomas R. Eimer Doctoral Researcher Assistant Professor of International Relations Department of Government Department of Political Science London School of Economics Radboud University Nijmegen Socio-Ecological Systems: environment, development and sustainability One-day Postgraduate Research Conference 7th April 2016.

About my research Policy and regulatory changes in Brazil between 2005 and case studies: Forest Policies  New Forest Code (2012) Conservation Areas  Change in the type of conservation areas created and in the speed of creation (mainly after 2011) Pesticides  Change in the process of registration of new pesticides (under discussion now) Biodiversity  New Law of Access and Benefit Sharing (2015)

Important concepts Bioprospection is the process of discovery and commercialization of new products based on biological resources. Indigenous and traditional knowledge if often helpful in bioprospecting and it is embedded in cultural traditions. Biopiracy, the commercial use of biological compounds by a country or organisation without obtaining consent from or providing fair compensation to the peoples or nations in whose territory the materials were discovered.

A brief history of the transnational exchange of genetic resources and traditional knowledge “Common heritage of mankind” principle Patents on biological material started granted by U.S changes the “common heritage” principle; “fair and equitable access and benefit sharing” and “holders of GR/TK” AFTER WW II 1980s 1992 Convention on Biological Diversity

The Nagoya Protocol The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity. The Nagoya Protocol on ABS was adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October The Convention on Biological Diversity (CBD) entered into force on 29 December It has 3 main objectives: 1.The conservation of biological diversity 2.The sustainable use of the components of biological diversity 3.The fair and equitable sharing of the benefits arising out of the utilization of genetic resources

Why Brazil? Among the 17 megadiverse countries in the world; Brazil is considered the most biodiverse country in the world, holding approximately one tenth of all species on earth (Lambertini 2000). A long history of biopiracy.

Brazilian Regulation: Bio piracy scandal in 2000

Brazilian Regulatory Efforts on ABS MP2052/ the president regulates the access to GR/TK through a Provisional Measure, a presidential legal act with immediate effect; The text of the first regulations is judicially contested due to its limited consideration to the need for indigenous consent, it goes through extensive reforms and is substituted by the Provisional Measure 2.186/2001; After fierce criticisms from life scientists, national private sector and indigenous and traditional communities and several years of negotiation Law is approved on 20/05/2015 (Our article)

But was this 2015 ABS Law any better? (Pros) It did make the process of bio-prospection less bureaucratic and faster for scientists and the private sector; It did protect agricultural sector against any interference/burden; It put Brazilian companies in a better position than they were before in relation to multinational companies; It created a Conservation Fund to be administered by the Ministry of Environment which is likely to favour more biodiversity conservation; BUT….

But was this 2015 ABS Law any better? (Cons) Indigenous and traditional communities were largely excluded from the negotiation process (no formal and comprehensive consultation was pursued) ‘it would take too much time for them to understand the topic’ (Civil servant2 MMA, 2014); ‘indigenous groups did not have the technical knowledge and organized demands of the industrial group’ (Civil Servant1 MMA, 2014) Rushed regulatory process in face of the entrance in force of the Nagoya Protocol and pressure from the pharmaceutical/cosmetic industry and agri-business.

Comparing CDB/Nagoya Protocol and Brazilian Regulation (Law ) (cons) ‘Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party’ (Art 15 – 5 CBD) the proof of informed prior consent can be provided by an official governmental body (Art 9, § 1, III); every traditional knowledge associated to genetic resources is considered by the law as a knowledge of ‘collective nature’ (Art. 10 § 1) Benefits arising from the utilization of genetic resources that are held by indigenous and local communities [should be] shared in a fair and equitable way with the communities concerned, based on mutually agreed terms. (Art NP) The user of the genetic resource can choose whether they want to practice monetary or non-monetary benefit-sharing and select the destination of their non-monetary contributions (which can be used in investments on the company itself) ’ (Art. 19, § 3; IV) a maximum of 1% of the annual net revenue of the final product to be designated for benefit sharing (Art 20), but allows it to be reduced up to 0.1% of the annual net revenue through an agreement to be celebrated exclusively between the industry and the government (Art 21).

Conclusion The adoption of the Nagoya Protocol was expected to enhance the ownership rights of traditional and indigenous communities, In Brazil, however, the ratification process of the protocol has motivated reforms which move in the opposite direction no formal and comprehensive consultation process with traditional and indigenous communities Government tried to protect national industry and agribusiness from international competition

Flavia Donadelli