6 December 2017 12:08 am
Biological diversity or biodiversity is a term used to describe the variety of life on Earth. It refers to the wide variety of ecosystems and living organisms; animals, plants, their habitats and their genes. Sri Lanka has a wide range of topographic and climatic variation that contributes to the special features of its biodiversity. But at present Sri Lanka’s biodiversity is facing an imminent danger as a result of bio- piracy.
It is mainly the medicinal plants that are being subject to bio piracy in Sri Lanka. At present the legal provision against bio piracy in Sri Lanka doesn’t control the situation and hence more room has been created for bio piracy in the island
Former Deputy Director of Customs and the President of Lanka Nature Conservationists Samantha Gunasekara in an interview with the Daily Mirror said that although Sri Lanka had been identified as a biodiversity hotspot in the world, biodiversity was under threat due to bio piracy.
“It is mainly the medicinal plants that are being subject to bio piracy in Sri Lanka. At present the legal provision against bio piracy in Sri Lanka doesn’t control the situation and hence more room has been created for bio piracy in the island. Even though, we have opened the floor on numerous occasions to discuss the economic, social and environmental loss that bio piracy brings to Sri Lanka, no effective action has yet been taken by the authorities. That’s really pathetic simply because it’s our prospects that are being smuggled in and profited on by foreign individuals,” Gunasekara said.
Illegal collection of indigenous plants
Former Customs official Gunasekara revealed that plant smugglers usually smuggle plants for the use of ornamental, medicinal and narcotic values inherent in them.
Vandana Shiva, an Indian scholar, environmental activist, food sovereignty advocate and anti-globalization author says, “Bio Piracy is biological theft and is described as the illegal collection of indigenous plants by corporations who patent them for their own use”. She has also written a book on Bio piracy: The Plunder of Nature and Knowledge.
Unauthorized exportation
Before bio piracy was known by the world, the term ‘bio-theft’ existed. Bio-theft is defined as the unauthorized exportation of the different components of indigenous bio-diversity. The export of any indigenous plant, animal or microbe without submitting to existing laws is bio-theft, regardless of the ornamental, medicinal and narcotic values.
Gunasekara explained that ‘bio-theft’ signified a quantitative aspect of genetic plants. Infamous Wallapatta (Gyrinops walla) or Kekatiya (Aponogeton) cases can be regarded as examples of ‘bio-theft’. But when we focus on the impacts of ‘bio-piracy, we observe that they have a drastic impact on qualitative aspects such as rights, due revenue, etc. Kothala Himbutu (Salacia reticulate) is the best local example and nevertheless over 100 patents had been obtained by various individuals and institutions based on this plant alone.
The moment a plant is taken out of a natural habitat without authorization, it amounts to bio theft. But bio theft can lead to bio piracy if the stolen plants are smuggled outside the country to obtain patents for these plants or any other product that is produced using the physical material of that plant. Most of the patents regarding Sri Lankan genetics have been obtained by Japan.
Originated in Sri Lanka
“Bio-piracy began to flourish consequent to the advancement of bio technology in the world. It is an alarming issue that requires pertinent provisions with immediate effect. This first came under the spotlight in Sri Lanka in 1993 regarding an incident that occurred in 1985 where 12 medicinal plants, including Nutmeg (Sadikka), Masakka, Nigella sativa or Black Cumin (Kaluduru), Sida alnifolia (Heenbabila), Weniwalgata and Clove (Karabu Nati), etc were patented in Japan (J.P. No: 60054312 of 28/03/1985) under the title of ‘Preventive for dental caries’. The extracts of these plants were used in toothpaste, gargles, ointments or chewing gum, manufactured by Nissan, Tsurui and Yakuhin.
Subsequently, there have been series of similar incidents where patents and other license have been obtained by various individuals or companies regarding indigenous plants of Sri Lanka. But, unfortunately no Governments has taken instant steps so far to obtain the due revenue and to formulate a proper mechanism to conserve the genetic resources of Sri Lanka. Therefore it’s necessary to take pertinent actions regarding this serious issue,” Gunasekara added.
Solutions to curb bio piracy
“It is necessary to improve the knowledge of plant identification among law enforcement authorities and environmental units at police stations. Workshops and awareness programmes need to be arranged to give the officials a basic knowledge as to what sort of plants they should look out for and how to press charges to increase the efficiency of the enforcement of environmental law,” Gunasekara added.
Plants that aren’t covered by the Flora and Fauna Protection Ordinance as “protected plants” are further protected by the Forest Conservation Ordinance Sections 20 and 24
In conclusion, it’s a noteworthy fact that there are more than one thousand native plants species which are used to cure various health disparities. It’s obvious that Sri Lanka is blessed with Indigenous knowledge which is passed from generation to generation by native physicians. This knowledge needs to be conserved for the welfare of the future generation Therefore, relevant provisions should be made by the authorities to address this issue in order to conserve the invaluable genetic plants in Sri Lanka.
Legal aspect
An Environmentalist and senior environmental lawyer Jagath Gunawardena told Daily Mirror that the legal framework in Sri Lanka was quite adequate to apprehend plant smugglers. But he pointed out that what was lacking was its proper enforcement. Moreover, the authorities had turned a blind eye on implementing existing laws in the face of illicit practices.
He said that the act of bio-piracy signified the grabbing of genetic plants by force just like in ordinary piracy, but what made it different in bio piracy was that the force was exerted through the intellectual property laws.
“The various components of bio-diversity like Polpala (Aerva lanata) and Ranawara etc, can be exported legally under the provisions of the Forest Ordinance (for all non-protected plants) and under the Fauna and Flora Protection Ordinance. If the use of components is purely for research purpose, it has to be subject to an agreement between the provider (not the individual or the institute, but one of the two departments) and the recipient. If there is any possibility of commercial use, then it has to be subject to a Material Transfer Agreement,” Gunawardena said.
He further said that the intellectual property tool that was being used to commit bio-piracy in the majority of cases is the Patent and added that there had also been a few instances in when a Plant Breeders Right or a Plant Variety Protection Right had also been used.
The word Patent is usually associated with new inventions and a patent is a legal right conferred on a person who makes a new invention which enables the use of it without competition (a monopoly) for a limited period of time, in order to let the inventor obtain a profit as a reward to the efforts put into making something that is useful to the society.
Gravity
The party which commits bio piracy uses the gaining of patents as an offensive tool even though patents are designed to defend intellectual property rights. Gunawardena said that the monopoly rights after obtaining a patent would extend up to 20 years, within which period the country that actually owns the smuggled plant had no benefit.
It has been analyzed the world over that commercial exploitation is the third major threat to the survival of wild species. The country which owns the rights regarding genetic plants doesn’t benefit through bio piracy, as it doesn’t receive the due revenue out of the biological resources. Especially income through genetic resources is huge. Compared with the exported quantity, we do not get sufficient income in the trade of certain biological resources. Yet environmental damage done is more.
According to Section 42 of the Flora and Fauna Protection Ordinance, it is illegal to remove, uproot, destroy, damage or injure any plant or for that matter sell, expose or offer for sale any plant that is named as a protected plant in the Ordinance
At the same time, if a patent is obtained for a plant endemic to Sri Lanka, the patent rights holder could stop the importation and selling of the plant if Sri Lanka attempts to export even though Sri Lanka is the country of origin.
“Kothala Himbutu, which is well-known for its priceless medicinal properties, has been smuggled out of the country in this manner. The plant has currently 132 patent applications among which 114 are against the interests of Sri Lanka,” Gunawardena pointed out.
What should be done
Samantha Gunasekara suggested that it was applicable to promulgate laws to issue proper patents so that transactions of endemic plants in Sri Lanka would be done legally and thus the economy of Sri Lanka would benefit at grand scale following the revenue incurred through endemic plants.