UNCBD Clause of "Access and Benefit Sharing": Linking through traditional medicines, despite legal challenges

 Slugline: Biological Diversiy has its legal challenges 

By Malini Shankar

 

Digital Discourse Foundation

Potions and lotions help with home remedes ... power of traditional medicines. 

It was the days of the Uruguay Round of trade negotiations in the second half of the 1980s when bureaucrats from all countries were haggling out the best possible terms for the welfare of the people in their own countries. The Uruguay Round of Trade Negotiations made way for Agreement on Trade Related Intellectual Property Rights (TRIPS) under the World Trade Organisation. This had nothing much to do with day long excursions as it comes out but belongs truly to rarefied, intellectually challenging trade negotiations - utterly invisible in plain sight.

Negotiations was not easy for emerging economies in trade, more so in areas such as intellectual properties and traditional wisdom. Imagine the hapless bureaucrat’s state of mind if he or she had to negotiate to quantify intangible commodities like traditional wisdom.

With India’s copyright regime or law in itself being a colonial hangover without any attempts made to correct the flaws it was well nigh impossible to take cognisance of invisible traditional wisdom regardless of strides made in WTO negotiations. Be that as it may, WTO regime came into effect on 1.01.2000 and one major area for TRIPS was medicinal plants conservation. Anti WTO activists articulated that documentation of medicinal properties of the medicinal herbs in the Biodiversity Hotspot – Western Ghats will lead to decimation of the Biodiversity Hotspot. This concern was indeed genuine.

India also legislated a highly progressive Biodiversity Act in 2002 in a sincere attempt to put People Before the Planet. Then came the Forest Rights Act in 2006 which enabled forest dwellers to claim territory in tiger terrain. But FRA had many layers of peoples’ empowerment regardless of Human Wildlife Conflict. It gave access to forest dwellers to utilise forest resources in lieu of patrolling duties among other things.   Significantly, the Biodiversity Act paved the way for tripartite conservation strategies with forest dwellers becoming stakeholders in their own livelihood security. All they had to do was to give “access” to investors and Private Sector Industry to forest resources.

Now let me break that down for you.

It played out as a patent for the Kani tribals in Kerala who professed traditional wisdom in the knowledge of (use of) Arogyapatcha or Trichophus zeylanthicus known for its stress busting properties. It turns out that this herb is actually good to treat hypertension.

Trichophus zeylanthicus known as Arogya Paccha is herbal medicine proven to be very effective in treating hypertension. This discovery came about when the scientists of Jawaharlal Nehru Tropical Botanical Garden Research Institute - JNTBGRI in Thiruvananthapuram went trekking in the Neyyar Wildlife sanctuary as part of Central Govt. sponsored programme of All India Co-ordinated Research Project on Ethnobiology (AICRPE), a scientific expedition for documentation of medicinal plants in the forests of Western Ghats in KeraIa, carried out in 1987. One of the scientists in the team – suffering as he was from Hypertension - found it difficult to climb the steep terrain and fainted.

The pollens in the flowers add to the biodiversity calue of traditional medicines and act as sustainable proponents. 

Eechan Kani the tribal man who was accompanying the team as a naturalist field guide that day instantly plucked a few leaves of this herb – found everywhere in the Neyyar Wildlife sanctuary in the Western Ghats - 8°33'35.95"N 77°16'44.39"E squeezed it on his palm and let the fluid / drops veer off his palm straight into the mouth of the befallen scientist and Lo behold! The man got up!

The scientists’ team aborted the field trip that day and came back to Headquarters where they narrated the story to the higher ups. “During a scientific expedition in the forests of Kerala for documentation of medicinal plants, a team of researchers observed that members of the Kani tribe, who were guiding them, remained remarkably energetic while the scientists frequently needed rest. Curious about the source of their stamina, the team noticed the tribespeople chewing on certain seeds. Upon inquiry, they learned that the plant, Trichopus zeylanicus—locally known as Arogyapacha—was a traditional energy booster used by the tribe. With the consent of the Kani community, the scientists from the Jawaharlal Nehru Tropical Botanic Garden and Research Institute (JNTBGRI), Trivandrum, began a detailed investigation into the plant's properties. After nearly eight years of rigorous research, they developed a herbal formulation named Jeevani, incorporating Arogyapacha as a key ingredient. In 1996, the commercial production license for Jeevani was granted to Arya Vaidya Pharmacy, Coimbatore. This collaboration also marked a milestone in ethical research and community rights with the introduction of a Benefit-Sharing Model. Under this model, the license fee and royalties were to be equally shared between the research institute and the Kani tribe. To facilitate this arrangement, especially since the forest-dwelling, semi-nomadic tribe lacked a formal mechanism to receive and manage the funds—amounting to over ₹5 lakh—a dedicated body, the Kerala Kani Community Welfare Trust, was established in 1997 with support from JNTBGRI and local NGOs. This pioneering model later influenced international policy and was incorporated into Article 8( j ) of the United Nations Convention on Biological Diversity (CBD) in 2002, recognizing the rights of indigenous communities over their traditional knowledge and resources” says Dr. Vipin Mohan Dan of TBGRI in an exclusive written statement by email given to Digital Discourse Foundation

Leaves of Moringa have infinite value as traditional medicine. 

The powers that be at JNTBGRI decided to patent the medicinal properties and after getting the patent, the scientists involved in the research shared the patent fees with the Kanis in accordance with UNCBD tenets like Access and Benefit Sharing: a cumulative result of Earth Summit 1992 when the United Nations Convention on Biological Diversity was committed to, ratified and became law in signatory countries. After all, the larger Planet can benefit from such traditional wisdom. It was a spectacular instance of putting “People Before the Planet”.

TRIPS regime it maybe, but without the legal support of copyright laws in India, how could the scientists or the WTO Cell legally bestow ownership of the traditional wisdom on any one present generation Kani? The patent fees was to be divided on 50% basis between the JNTBGRI and the Kanis.

Eachen Kani was the field guide on the day when the befallen scientist from JNTBGRI was treated to a handful of herbal drops from Trichophus zeylanthicus or Arogya Paccha. Thus Eachen was appointed point-man to represent the collective interests of the forest dwelling Kanis.

Given the fact that it could not be legally proven that Eachen Kani was the original owner of the traditional wisdom of the medicinal properties of Trichophus zeylanthicus or Arogya Paccha, he could not be the singular beneficiary of the patent fees, obviously.

Question arose as to which Kani can benefit from the patent fees or accept the fees as traditional wisdom and knowledge on behalf of generations of Kani tribe. The traditional wisdom or knowledge cannot be sourced to one person genealogically speaking. The Kanis’ share of the patent fees was subject to endless disputes.

The Kanis’ aspiration for village development found voice in demand for educational institutions, health care infrastructure, and access to roads and highways, livelihood opportunities and eradication of poverty and alcoholism. Now, that is not too much to ask for… its part of the citizen rights enshrined in the Directive Principles of State Policy in India’s Constitution.

The Forest department cannot legally permit economic development of the Kanis in a Protected Area – roads, schools, hospitals, markets, etc.

While TRIPS / WTO made it possible for pharma companies to exploit medicinal plants by giving a patent fees to indigenous people for their traditional wisdom, it fell on the Forest Department to conserve forest resources with conservation value.

The Soliga tribes seen here going for their daily honey collection. Photo credit: Malini Shankar & Walter Keller

But India’s binaries in political ecology make forest dwellers aliens in their own land. By then it was already 2002 and India had legislated the Biodiversity Act which mandated biodiversity registries and putting “people before the planet”. In the World Summit on Sustainable Development a UNEP Environmental Summit held in Johannesburg in South Africa, India’s representative made a case for “Access and Benefit Sharing” successfully. The United Nations Development Programme awarded the inaugural Equator Prize to India’s nominee Dr.Pushpagandan of JNTBGRI  during World Summit on Sustainable Development held in Johannesburg South Africa in 2002. The inaugural Award was given in recognition of his valiant efforts to reduce poverty through the conservation and sustainable use of biodiversity.

 When it came to the knowledge of JNTBGRI that the Kanis had neither a bank account nor the legal capacity / literacy to operate a bank account, the JNTBGRI initiated third party interventions and an NGO - the Kerala Kani Samudaya Kshema Trust - was appointed to liaise on behalf of the Kanis; the NGO then opened a bank account and 50% of the JNTBGRI’s patent fees was deposited into the account. But the danger of the money being spent on things not meant for the development of the Kanis was real.

So after a lot of confabulations, botanists in JNTBGRI were called upon to find a feasible, sustainable solution to ownership of traditional wisdom and knowledge. It remains an unresolved issue to date.

After lengthy confabulations with all concerned - including forest department officials, village administration officials, district and state government officials, Law Ministry and WTO officials, UNDP etc… consensus emerged that the patent fees ought to be used as seed fund for the development of the Kanis.

In this case it was making the Kani tribals stakeholders in ex situ conservation of the much sought after medicinal plant Trichophus zeylanthicus or Arogya Paccha. The genesis of the idea of ex situ conservation is to propagate the medicinal herb so that in situ conservation of the biota and habitat is assured.

For making ex situ conservation possible, or for the Kani having introduced an effective herbal medicine for treatment of hypertension – having given access to the larger world to their traditional wisdom – the Kanis deserve benefit sharing in terms of share in patent fees.

Meanwhile the patent expired and without renewal of patent, the Kanis’ access to their own development seed fund became an issue; the scientists at JNTBGRI suspecting in hushed whispers that the ‘development seed fund’ was expended on alcohol and other frivolous consumption. The seed fund was not treated as a Common Property Resource by the bank account holder.

Further trouble arose when it was found that the medicinal herb could not be propagated in ex situ conservation because it can grow only amidst naturally humid conditions with arboreal trees canopy in the tropical forests and undergrowth on the forest floor.  Such factors leave the lofty goals of the UNCBD – read – Putting People Before the Planet – in significant doubt about its efficacy or practicality.

India’s Biodiversity Act’s mandate for ‘biodiversity registries’ lends potential to scale up this Access and Benefit Sharing clause to all medicinal plants  across the biodiversity reserves in any part of the globe. Indeed it is a harbinger of Biodiversity Partnerships for Progress – SDG 17 which was one of the points of focus in UNCBD’s 16^th Conference of Parties that was held in Cali Colombia in October 2024. India became a proud leader overnight back in 2002 for having legislated perceptively to put People Before the Planet.

The larger question of tribal versus the tiger or the tiger’s faunal spectrum and biota in tribal land remains unaddressed to date.

Copy(w)rig(h)ting  herbal medicines and the traditional knowledge owner is a task facing the UNCBD. 

· The other question – who is the legally recognised owner of traditional knowledge or wisdom still begs the attention of legislators and policy makers in the space of copyright regime. As things stand today only a copyright breach invites legal application. Jurisprudence is unable to take cognisance of copyright of traditional knowledge and wisdom when it has not been copyright enabled. 

·         A lot more work remains unfinished and even unaddressed. Despite the Forest Rights Act and the Biodiversity Act forest dwellers and indigenous people lack food, water, and health and livelihood security.

·         The paltry land rights they get is a misnomer for encroachment of what should be earmarked as Wildlife reserves. Forest dwellers – who are more or less developmental refugees need to be relocated and given a more secure and respectable life and standard of living.

·         Livelihood security remains a pipe dream for urban, educated populace in India; what then can be said of illiterate uneducated forest dwellers who are trying to eke out a living from inaccessible forest resources?

·         Political will is amiss to make a record of the aspirations of indigenous people. Neither that of wildlife interests have been recorded.

·         Land Use Policy needs to be defined, drafted and legislated soonest. Before these policy changes, putting people before the planet is no more than a regularisation of encroachment. It’s the perfect recipe for Wildlife disaster.

Putting People before the Planet has its share of noble thoughts, undoubtedly but Mother Nature has her own regimen: Inviolate conservation sustains the gene pool for the Future. Now that’s the challenge for Sustainability.