Assessing The Implementation And Performance Of State Level Biodiversity Boards.docx

ASSESSING THE IMPLEMENTATION AND PERFORMANCE OF STATE LEVEL BIODIVERSITY BOARDS

Project work submitted to the Tamil Nadu National Law School

by DENNY ALEXANDER BA0150011 Under the guidance of

Dr. S.K.BALASHANMUGAM, M.A.(Pub.Ad.)., M.L., Ph.D (Law).

TAMIL NADU NATIONAL LAW SCHOOL MARCH 2019

1

Contents DECLARATION OF AUTHORSHIP ................................................................................................ 3 ACKNOWLEDGEMENT .................................................................................................................... 4 Abstract.................................................................................................................................................. 5 Introduction - Convention on Biodiversity, 1993 in perspective .................................................... 6

I.

A)

Obligations on member countries ........................................................................................... 8

B)

Access to Genetic resources under the Convention ................................................................ 9

C)

Benefit sharing under CBD ................................................................................................... 10

India’s compliance with CBD - The Biodiversity Act, 2003 ........................................................ 11

II.

A)

Scheme of the Act ................................................................................................................. 12

B)

3-tier regulatory mechanism under the Act ........................................................................... 12

C)

Access and benefit sharing scheme under the Act ................................................................ 14 A critical review of performance of State Biodiversity Boards in India ................................... 16

III. A)

Tamil Nadu’s problems ......................................................................................................... 16

B)

Success stories – Karnataka, Madhya Pradesh and Kerala ................................................... 17

IV. V.

Conclusion ................................................................................................................................ 19 Bibliography ................................................................................................................................. 20

2

DECLARATION OF AUTHORSHIP

I,Denny Alexander hereby declare that this project titled “Assessing the implementation and performance of State Level Biodiversity Boards (SBB’s) under the Biodiversity Act, 2003” submitted to Tamil Nadu National Law School, Tiruchirappalli , is the record of an bonafide work done by me under the expert guidance of the venerated Environmental Law faculty of Tamil Nadu National Law School, Tiruchirappalli. All authentic information furnished in the project is true to the best of my knowledge and belief.

Submitted to: Prof. Balashanmugam S.K Submitted by: Denny Alexander

3

ACKNOWLEDGEMENT

First, I am also grateful to God for giving me the courage and strength to withstand all hindrances during this project and make it successfully finally since its start. Secondly, I thank my Environmental Law Professor, S.K. Balshanmugam S.K. for allotting me such a challenging and dynamic topic. Even repaying her through mere words in beyond the domain of my lexicon that was the backbone during all hurdles that I confronted during the making of this project, hence I am forever duly indebted to him as a student. Also, I am grateful to the staff and administration of Tamil Nadu National Law School who contributed useful resources tremendously in the making of this project by providing library infrastructure and data connections which were instrumental in helping me make this project. This entire project wouldn’t have been possible without the involvement of precious inputs of my parents and friends who sacrificed their valuable time to guide and advice me at all times of need to make this project a successful one.

4

Assessing the implementation and performance of State Level Biodiversity Boards (SBB’s) under the Biodiversity Act, 2003 Denny Alexander BA0150011

Abstract The Biodiversity Act, 2003 was passed with the aim of conserving biodiversity, ensure fair and equitable sharing of benefits arising from genetic resources and to comply with India’s international obligation, after having signed the Convention on Biodiversity (CBD), 1992. The Act envisages a 3-tier redressal and monitoring system at the national, state and local levels, in the form of biodiversity boards and management committees. Despite a decade having passed by, the implementation of the provisions of the Act have been lagging in many states. For e.g., in Tamil Nadu, the State Biodiversity Board has not yet been performing in a full fledged manner and only 10 Biodiversity Management Committees were formed. Contrasting example can be found in states like Kerala and Andhra Pradesh, where the SBB has been proactive in its functioning and has implemented innovative methods to promote awareness among people. This disparity in the implementation of the SBB’s and BMC’s in states is a cause for concern, owing to some states being rich in biodiversity like Tamil Nadu itself. In this paper, the researcher will study the functioning of SBB’s and BMC’s in different states to assess their performance and role in conserving biodiversity.

Keywords :- Biodiversity- State Biodiversity Commission- Biodiversity Management Committees – State disparities

5

I.

Introduction - Convention on Biodiversity, 1993 in perspective

For the first time, conservation and protection of biodiversity became a priority in the year 1992, when the Rio Declaration was passed. Prior to 1992, the need for an extensive legal instrument on conserving biodiversity was acknowledged by the United Nations Environmental Programme (UNEP), which led to the formation of an Ad Hoc Working Group of Experts on Biological Diversity in November 19881. However, even before the Ad Hoc Committee was formed, the International Union for Conservation of Nature (IUCN)’s commission on environmental law was instrumental in preparing draft materials on a biodiversity legal document in the early 1980’s. But, ultimately, the UNEP’s Ad Hoc Committee was tasked with framing the text of the convention. The main objective of the committee was to take into account the costs and benefits to be incurred and shared by the developing and the developed countries and find means to support innovation by local people2. The Ad Hoc Committee was later renamed in the year, 1991 as the InterGovernmental Committee, which submitted the final document to be adopted as the Convention of Biological Diversity in the Nairobi Conference. The CBD was meant to complement the UN’s efforts in establishing a Conference on Environment and Development (“Rio Summit”), which addressed broadly the role of environment, climate and indigenous communities3. With the passing of the Rio Declaration in 1992 at the United Nations Conference on Environment and Development (UNCED), the Convention on Biodiversity was also opened to member nations for ratification in 1993. India was one of the original members to sign and ratify the treaty. The CBD’s primary agenda is to create an international framework to beneficially exploit and conserve biodiversity4. The principle of sustainable development lies at the core of this convention. The Rio Declaration defines the rights and duties of people and states in utilising resources for economic and development ends in a sustained manner such that, the future generation will not be

1

See Ashish Kothari, Politics of Biodiversity Conservation, Economic and Political Weekly, 27 (15) 749 Convention on Biological Diversity, History of the Convention, Available at : https://www.cbd.int/history/default.shtml, (Last Accessed on 13/03/2018, 22:55 PM) 3 See Srividya Raghavan, PATENT AND TRADE DISPARITIES IN DEVELOPING COUNTRIES 332, Oxford University Press, USA (2012) 4 Convention on Biological Diversity, June 5, 1992, 1760 UNTS 79; 31 ILM 818 (1992) [hereinafter “CBD”], Available at: https://www.cbd.int/doc/legal/cbd-en.pdf, (Last Accessed on 13/03/2018, 22:55 PM) 2

6

impaired from using the same resources for their needs. The CBD is also centred around this principle of sustainable development in the context of accessing and conserving biodiversity for usage by the future generations. Broadly, the CBD streamlined the use of access and sharing of genetic resources to achieve three important objectives: first, conserving biological diversity, second, promoting sustainable use of biodiversity components; and third, sharing benefits from biodiversity resources in exchange for transfer of technology5. The objectives of the Convention are set in the background of the principle of “fair and equitable sharing”6 of the benefits from genetic resources, which principle is considered the crux for enabling transfer of technology7. Overall, the CBD’s objective is to promote the use of biodiversity resources toward sustainable development. The major features of the Convention will be discussed below. Research Questions 1) Whether India, as a signatory to the CBD complied with the regulations set in the Convention? 2) Whether the National Biodiversity Authority, State Biodiversity Boards and the Biodiversity Management Committees are functioning as per the statutory mandate mentioned in the Conservation of Biodiversity Act, 2002 3) Which are the states that have defaulted in its obligations under the Act and which states have complied with the letter of the law? Research Objectives 1) To study India’s obligations under the Convention on Biodiversity, 1992 2) To assess whether State Biodiversity Boards and Biodiversity Management Committees have complied with the obligations set forth in the Biodiversity Act, 2002. 3) To suggest measures for improvement in the performance of states in conserving biodiversity. Hypothesis

5

CBD, Supra note 4, Art. 1 See Frank Muller, Does the Convention on Biodiversity Safeguard Biological Diversity, Environmental Values 9(1) 55, 56, February (2000) 7 Supra note 5. 6

7

There is a disparity in the implementation of the obligations set forth in the Biodiversity Act, 2002 by states with some states underperforming and some states performing well in protecting biodiversity.

Research methodology The research is doctrinal in nature, with authority stated from Primary sources like conventions and statutes.

A) Obligations on member countries The Convention provides for guidelines and other recommendations, while binding provisions are very few. Most of the commitments of Parties under the Convention are qualified8, and their implementation will depend upon the particular national circumstances and priorities of individual Parties, and the resources available to them9. First, under Art. 6 of the Convention, parties are required to setup national action policy plans and goals in regulating the conservation of biodiversity. Art. 7 directs countries to identify specific biodiversity resources or habitats and create sufficient measures to protect them. Unlike other international environmental agreements CBD does not list out specific resources that are to be protected and leaves this to the discretion of the countries, based on the local conditions prevailing there. Art. 8(g) of the Convention directs signatory countries to “establish or maintain the means to regulate, manage or control risks from biotechnology likely to adversely affect the environment”. Since CBD is concerned with prevention of loss of biodiversity due to bioprospecting or biopiracy, countries are expected to frame in their national laws, sufficient safeguards for protecting biodiversity resources. Further, Art. 8 also emphasizes on in-situ conservation of biodiversity resources within their natural habitat instead of an ex-situ approach. The article also prescribes a comprehensive action 8

See Jessica S. Jerome, How International Legal Agreements Speak About Biodiversity, Anthropology Today 14 (6) 7,8, (December 1998) 9 See Convention on Biological Diversity, Available at : https://www.cbd.int/gbo1/chap-02.shtml, Last accessed at : 19:24 PM, 14/03/2018

8

plan for in-situ conservation10 which includes elements like protected areas, regulation and management of biological resources, rehabilitation & restoration etc. A notable feature of this convention is the flexibility it provides for developed, developing and under-developed countries, as they can frame their domestic legislations based on the prevailing socioeconomic and ecological condition. B) Access to Genetic resources under the Convention Tied closely with the concept of conservation is sustainable use of biodiversity materials. Thus, Art. 3 of the CBD affirms the sovereign right of states to exploit resources, “pursuant to their own environmental policies”. Although governments may impose restrictions on access to genetic resources using national legislation, the Convention clearly prefers allowing access. For instance, Art.15(2) specifies that national legislation shall not run counter to the objectives of the Convention, and one of the objective of the convention is to allow “appropriate” access to generic resources. Thus, countries cannot refuse access, but they can carefully impose restrictions to ensure preservation of biodiversity and local communities11. Under the CBD, one of the most important formalities in accessing genetic resources is to obtain the “prior informed consent” of the holder. The Convention, however does not define the phrase, prior informed consent. In order for consent to be informed, resource holders should have adequate knowledge of the proposed use and future financial potential of the resources they would be sharing. The CBD also does not clarify whether the holders of indigenous knowledge retain the right to refuse consent after knowing the “full and fair” circumstances of the case. Since, there are no standards prescribed in the CBD regarding assessing “prior informed consent”, it is up to the member states to use local legislation to clearly define and subject the access provision to proper consent of the communities by outlining clear and standardised procedures. While access to biodiversity resources is definitely an objective of the Convention, the mutual access to benefits to those whose resources were utilised is equally vital in conserving biodiversity and rewarding traditional communities. In the next section, the researcher will address another crucial element of the Convention, which includes “benefit sharing” of the resources with those from whom, such resources were obtained in the first place.

10

See Ajeet Mathur, Who owns Traditional Knowledge?, Economic and Political Weekly, 38 (42) 4471, 4475, (October, 2003) 11 Supra note 3, pg.333

9

C) Benefit sharing under CBD Access to biodiversity in exchange for access to technology captures the essence of CBD’s vision to promote global equity12. Thus, the issue of access and benefit sharing needs to be positioned in the light of the CBD provisions for transfer of technology. Art.1 of the CBD emphasizes the need for “fair and equitable” sharing of the benefits arising from the use of genetic resources13. Similarly, Art. 15, which discusses access to genetic resources, indicates the expectation of transfer of technology, whereas Art. 16 details the access to technology commitments. By incorporating the philosophy of exchange of technology and genetic resources, CBD has raised the awareness level of the value inherent in genetic resources. Critics argue that, the CBD despite providing for reciprocal access to technology in return for providing biodiversity material, ultimately, the ability to obtain favours depends on the bargaining powers and positions of both the parties. Art. 15(4) mentions that, sharing shall be done, “on mutually agreed terms” and Art. 16(2) specifies that the transfer of technology be done under “fair and favourable terms”. However, the Convention does not define the standards for “fair” or “reasonable” terms of transfer, leaving the process entirely to the bargaining positions of the parties. In this context, it is also pertinent to mention about the grant of IP rights to any invention made from the biodiversity material obtained. Art. 16(2) deals with transfer of technology made from the biodiversity material in consistency with any IP protection over it. This provision has been subject to criticism owing to its ability to making technology inaccessible to the indigenous or traditional communities by prioritising the rights of the technology owner rather than the communities. Another potential issue in benefit sharing is that of “bio-prospecting” and that of “biopiracy”. “Bio-prospecting” is a process, wherein biodiversity components are commercialised to extract materials for various purposes that are primarily researchoriented. While bio-prospecting can be done legally, “biopiracy” is illegal. Biopiracy is the process of exploitative appropriation of traditional or indigenous knowledge from the communities possessing them without a proper benefit sharing scheme. For e.g., the famous Turmeric case14 and the incident involving Rosy Periwinkle are recent examples of claims of biopiracy. Thus, when biodiversity material is obtained from traditional communities, a

12

See Jim Chen, Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property, 31 ENVTL. L. RPTR. 10625, 10631 (2001) 13 CBD, Supra note 4, Art. 1 14 See Sangeetha Udgaonkar, The recording of traditional knowledge : Will it prevent “Bio-Piracy”, Current Science, 82(4) , February 2002.

10

proper benefit sharing scheme is a must to prevent exploitation of those communities and ensure sustainable usage of nature’s resources. II.

India’s compliance with CBD - The Biodiversity Act, 2003

India’s signing of the Convention on Biodiversity in 1993 obligated India to make necessary changes in the domestic legal system to incorporate the principles of CBD. The result of this was the passing of the Biodiversity Act, 2003, which came into force on 1st October 2004. India has been playing a major role in the implementation of global, international, regional and national policies and programs related to environment, biodiversity, trade and intellectual property rights. Biological diversity and associated traditional knowledge are two important areas of focus for India, with links to sustainable development15. India had signed a number of other international environmental conventions like the Convention on International Trade of Endangered Species of Wildlife Fauna and Flora, 1973, Convention for the Protection of World Cultural and Natural Heritage, 1972, Ramsar Conservation on Wetlands, 1971 etc. All these conventions were confined to specific objectives, while the CBD provides for a holistic model for conserving biodiversity. By virtue of a wide variety of physical and climatic conditions, India harbours varied ecosystems ranging from the tropical rain forests to high alpine cold deserts, grasslands, wetlands and coasts. India, roughly has 11 % of world’s flora and an incredibly diverse fauna with India having approximately 89,540 species16. Therefore, the Biodiversity Act has been framed taking into consideration all the different stakeholders in ecological protection. The preamble of the Biodiversity Act, 2003 specifies the purpose for which it was passed, “An Act to provide for conservation of biological diversity, sustainable use of biological resources, and sharing of the benefits arising out of the use of these resources and associated knowledge17, the 3 core objectives of the Act. The following sub-section will elucidate the scheme of the legislation. The Parliament also notifies the Biodiversity Conservation Rules in the year 2004 to give effect to the provisions of this Act.

15

K Venkatraman, Access and Benefit Sharing and the Biological Diversity Act of India: A Progress Report, Asian Biotechnology and Development Review, 10(3), 69, 71, (2008) 16 K Venkatraman, India’s Biodiversity Act 2002 and its role in conservation, Tropical Ecology 50(1) 23, 23, (2009) 17 Conservation of Biodiversity Act, 2002, Available at: http://lawmin.nic.in/ld/P-ACT/2003/The%20Biological%20Diversity%20Act,%202002.pdf, (Last Accessed at : 17:59 PM, 16/03/2018)

11

A) Scheme of the Act The Biodiversity Act provides a comprehensive definition of the term biodiversity to include all the variability among living organisms from all sources and the ecological complexes18. The term “biological resources” includes all biotic components such as, plants, animals, micro-organisms and also, the combination of their genetic product19. Chapter II of the Act (sections 3-7) restricts access to obtaining genetic material by certain people. Section 3 distinguished between Indian researchers who want to obtain genetic material and non-residents researchers who want access to genetic material and mandates the latter category of people to compulsorily obtain permission from the National Biodiversity Authority. Chapters III, IV and V of the Act state the requirements for establishment, composition and functions of the National Biodiversity Authority20. Chapter VI deals with the establishment, composition, powers and functions of the State Biodiversity Board. Chapter IX lays down the powers and functions of the Central and State govt and Chapters X and XI provides for the establishment of Biodiversity Management Committees (BMC’s) and Local Biodiversity Funds. In the forthcoming chapter, the researcher will comment upon the 3-tier regulating structure in the Act and Access and benefit sharing provisions.

B) 3-tier regulatory mechanism under the Act The Act is implemented through a three-tiered institutional structure at the national, state and local levels21. S.8 of the Act establishes a National Biodiversity Authority (NBA), which is seated in Chennai. The NBA is the primary body responsible for implementation of the Act. The NBA also performs functions such as laying down the procedures and guidelines to govern the activities such as access and benefit sharing and Intellectual Property Rights, in accordance with the Article 8 (j) of the Convention on Biological

18

S.2(b), Biodiversity Act, 2002 S.2(c), Biodiversity Act, 2002 20 See Udisha Ghosh and Chandralekha Akkiraju, Biodiversity Act, 2002: An Analysis, Academike, (February 2015). Available at : https://www.lawctopus.com/academike/biodiversity-act-2002-analysis/#_edn6, (Last Accessed at : 21:40 PM, 16/03/2018 19

21

See Biological Diversity Act, Available at : http://www.moef.nic.in/division/national-biodiversity-authority-nba, (Last Accessed at 21:54 PM, 16/03/2018)

12

Diversity (CBD)22. The NBA co-ordinates the activities of the State Biodiversity Boards, Biodiversity Management Committees by providing technical assistance and expert guidance. The NBA also plays its role as an Advisory body to the govt. wherein it advises the govt. on essential issues like sustainable use of biodiversity resources, notify areas of biological importance, conservation and preservation of resources etc. The National Biodiversity Act is headed by a chairperson (who is eminent in that field) who has extensive knowledge about the issues surrounding biodiversity appointed by the Central govt., three ex officio members to be appointed by the Central Government, one representing the Ministry dealing with Tribal Affairs and two representing the Ministry dealing with Environment and Forests and seven other ex-officio members23. The Authority meets once every three months to overSee the work of the NBA, SBAs and BMCs to approve applications for access to India’s biological resources. The State Biodiversity Boards (SBB’S) established under this Act have the function of advising the State Government on matters of biodiversity and its equitable distribution and utilization in tandem with the guidelines of the Central Government but more importantly to regulate granting of approvals or requests for commercial utilization of biological resources as given under Section 2324. The State Biodiversity Boards (SBBs) constituted by the State Governments primarily deals with all matters relating to access by Indians of biodiversity resources for commercial purposes25. While the NBA advises the central govt. over issues pertaining to this Act, the SBB have advisory powers to make recommendations to the State govt. They also have powers to restrict some activity which could be prejudicial to the objectives of the Act. The Biodiversity Management Committees (BMC’s) function at local levels unlike the national and the state Biodiversity Authorities. The main objective behind establishing BMC’s is to provide a forum for the local and indigenous people to share their opinion on conserving biodiversity resources. The BMC also has the powers to levy a fee on anybody

22

Supra note 16, pg. no.16 S.8, National Biodiversity Act, 2002 24 See State Biodiversity Boards: Analysis of Functions And Powers, Available at: https://blog.ipleaders.in/state-biodiversity-boards-analysis-functions-powers/, (Last accessed at: 22:27 PM, 16/03/2018) 23

25

Supra note 21

13

who wishes to access biological resources for research purposes26. Thus, the 3-tier regulatory body work in harmony to achieve the ends of this Act.

C) Access and benefit sharing scheme under the Act The 2 objectives of the CBD are: (1) for countries to allow access to biodiversity material, be it commercial or for research purposes, and (2) adequate, fair compensation to those from whom the resources were obtained (can include indigenous communities who own traditional knowledge). The Biodiversity Act, 2013 also provides for the same through its provisions. Access to biodiversity resources – The Act stipulates 3 ways for different stakeholders to get access to biodiversity resources. 

According to section 3 of the Act, for access to biodiversity resources by foreigners, foreign companies and NRI’s, a prior approval is to be granted by the National Biodiversity Authority (NBA)27.



According to section 7 of the Act, for access to biodiversity resources by Indians citizens, companies, associations, a ‘prior intimation’ is to be sent to the State Biodiversity Board. While, for access to biodiversity by foreigners, a prior approval by the NBA is required, for access to biodiversity by Indians, only a prior intimation to the SBB will suffice28.



The Act also provides an exception to local and indigenous communities who have been using growing or cultivating biodiversity resources.

Rules 14-20 of the Biodiversity Rules, 2004 lay down an efficient and a quick process to obtain the required consent from the concerned authority. The Biodiversity Rules also provide for revocation of access granted under certain circumstances. A revocation of access can be granted only on the basis of a complaint or suo moto basis on the following grounds: violation of the provisions of this Act, non-compliance with the terms of conditions etc. The Act also restricts access to certain types of biodiversity resources if they are rare or endangered species, or if granting access will cause further damage to the natural habitat of that resource.

26

S.41, National Biodiversity Act, 2002 See also Rules 14-20, Biodiversity Rules, 2004 (procedure for obtaining a prior approval) 28 Supra note 15, pg.74 27

14

Benefit sharing mechanism under the Act- The Act emphasizes upon incorporating appropriate benefit sharing terms and conditions in the access agreement and mutually agreed terms related to transfer of biodiversity resources. While granting approvals for access, NBA will impose terms and conditions so as to secure equitable sharing of benefits to the local or indigenous communities. These benefits inter alia include29: 

Transfer of technology produced using the biodiversity resources.



Access to area of production, research and development units in such areas which will catalyse a better standard of living to the ones who claim the benefits.



Grant of joint ownership of intellectual property rights to the National Biodiversity Authority or the benefit claimers.



Association of Indian scientists, benefit claimers and the local people with research and development in biological resources and bio-survey and bioutilization.



Setting up of venture capital fund for aiding the cause of benefit claimers.



Payment of monetary compensation and other non-monetary benefits to the benefit claimers as the National Biodiversity Authority may deem fit30.

Despite there being guidelines on benefit sharing, the exact formula for benefit sharing is calculated on a case-to-case basis. Some of the criteria which are used to determine the exact amount include, the extent of use of such resources, the aspect of sustainability, the expected outcome levels or the kind of impact the resource can have31. Where resources or traditional knowledge are taken from indigenous or local communities, the NBA has an obligation to ensure the respective community. In India out of 844 applications between 2003 and 2013, 117 agreements were concluded in 4 categories of access to biological resources, transfer of research results, IPR applications and third Party Transfers. Despite success stories, benefit sharing remains an integral aspect of sustainable use of biodiversity as parties which seek to exploit the resources end up having a higher bargaining power than the indigenous communities32. The need of the hour is to create awareness among all stakeholders involved and a complete and thorough follow-up of all the access and benefit sharing agreements.

29

Supra note 15, pg.77 S.21, National Biodiversity Act, 2002 31 See Hem Pande, Implementation of ABS Mechanism in India, Available at: https://www.cbd.int/doc/meetings/abs/icnp-03/presentations/icnp-3-India-H-Pande.pdf, (Last accessed at: 00:47 AM, 16/03/2018) 32 Supra note 3, pg. 343 30

15

III.

A critical review of performance of State Biodiversity Boards in India

India had ratified the CBD with the passing of the National Biodiversity Act, 2002 and has been more than a decade to assess the performance of the State Biodiversity Boards (SBB’s) and Biodiversity Management Committees (BMC’s). Despite the legislation having existed for over more than 10 years, the progress made by different states in India have been very slow 33. India is one of the 17 mega-biodiversity countries with 7-8% of the recorded species of the world. The Western Ghats and the Himalayas are among the world’s 35 biodiversity hotspots. Change in land use and climate are harming several of their species34. Currently, even after 18 years after enactment of the National Biodiversity Act, 2002, 2 states are yet to constitute their State Biodiversity Boards. Bihar and Jammu Kashmir are the 2 states, which are yet to form their SBB’s and many of the other states have an SBB only on paper. The State Biodiversity Boards in Kerala, Karnataka and Madhya Pradesh were the first ones to be established and have outpaced most of the other states in their efficient performance over the course of the years35. Clearly, each of the SBB’s is at different stages of implementation of the BD Act, yet their role has remained limited to that of receiving intimation from Indian institutions, corporate bodies or individuals who wish to use biological resources and related knowledge. A) Tamil Nadu’s problems Till before 2012, only 11 states had published their Biodiversity Rules, under the obligation imposed upon them by the Act. Tamil Nadu state govt. passed an order only in 2012 to commence the formation of a state level Biodiversity Board. In the words of a senior forest official – “Tamil Nadu has just begun its journey, other southern States like Andhra Pradesh, Kerala and Karnataka have gone one step further by notifying Biodiversity Rules. Besides, they have formed hundreds of Biodiversity Management Committees (BMC), are maintaining numerous registers of people engaged in biodiversity conservation”36. Tamil Nadu not only started late, but is also facing problems relating to setting up Biodiversity Management Committees (BMC’s). BMC’s are formed to co-ordinate with the local or indigenous 33

See Shalini Bhutani and Kanchi Kohli, Ten Years of the Biological Diversity Act, Economic and Political Weekly 47 (39) 15, 15 (September 2012) 34 See Kumar Srivastav, Biodiversity law crippled at the grassroots, Hindustan Times, August 12, 2016, Available at: https://www.hindustantimes.com/india-news/biodiversity-law-crippled-at-the-grassroots/storyMTY9EVst6R7arkmpaLRo4N.html, (Last accessed at: 10:46 AM, 17/03/2018) 35 Supra note 33, pg. 15 36 See P.Oppilli, At last, Tamil Nadu gets Biodiversity Board, The Hindu, October 8, 2012, Available at: http://www.thehindu.com/todays-paper/tp-national/At-last-Tamil-Nadu-gets-BiodiversityBoard/article12549693.ece, (last accessed on: 14:44 PM, 17/03/2018)

16

communities and conserve the local biodiversity and raise awareness about commercial usage of such resources. Till date, the state has only 19 BMC’s without further classification in the regional, village and at block levels. The BMC’s are expected to maintain People’s Biodiversity Register (PBR), where records of areas of rich biodiversity like forests, rivers etc. resources are recorded. Not only is there a problem with the formation of a BMC, but also regarding filling up of vacancies in these bodies. According to the Biodiversity Act, 2002, every local body shall constitute a BMC to promote sustainable use and document the existence of biodiversity resources37.

S.2(h) of the Act defines the term, “local bodies” to include,

panchayats, municipalities and all other institutions of local self government. In Tamil Nadu, the delay in elections to the municipalities38, panchayats have resulted in not filling up of vacancies in the BMC’s. This has led to many concerns about unregulated exploitation of biodiversity material by private entities. Thus, Tamil Nadu state govt. has been relatively lethargic and slow while dealing with their obligations under the Biodiversity Act, 2002. B) Success stories – Karnataka, Madhya Pradesh and Kerala While Tamil Nadu has recorded a delayed start and is continuing to face problems, the State Biodiversity Boards of Karnataka, Madhya Pradesh and Kerala have been active in addressing the objectives of conserving and sustainable use of biodiversity resources. Statistics from National Biodiversity Authority (NBA) reveal that Kerala has 1,043 panels of BMC whereas Karnataka has 4,363 and Andhra Pradesh, 928. Even the recently carved out state of Telengana has set up 710 BMCs39. Karnataka has also declared four Biodiversity heritage sites with the consultation of the BMC’s and other stakeholders. Karnataka Biodiversity Board was founded in the year 2003, right after the passing of the Biodiversity Act, 2002. National Biodiversity Authority and Government of India has conferred “The Best Biodiversity Board Award in India” to Karnataka Biodiversity Board for the year 2009-10, for the overall performance of the Karnataka Biodiversity Board in implementation of biological diversity Act 200240. Some of the functions performed by the Biodiversity Board includes formation of

37

S.41 (1), Biodiversity Act, 2002 See P.Oppili, Biodiversity conservation hit in the absence of elected local bodies, Times of India, June 9, 2017, Available at: https://timesofindia.indiatimes.com/city/chennai/biodiversity-conservation-hit-in-the-absence-of-elected-localbodies/articleshow/59059843.cms, (Last Accessed at : 15:16 PM, 17/03/2018) 39 See Prince Jebakumar, Tamil Nadu's Biodiversity Loss, DT Next, June 14, 2017, Available at: https://www.dtnext.in/News/TamilNadu/2017/06/14074106/1036190/Tamil-Nadus-Biodiversity-Loss.vpf, (Last Accessed at: 15:20 PM, 17/03/2018) 40 See Karnataka Biodiversity Board, The Hindu, June 05, 2012, Available at: 38

17

BMC’s, training and awareness programs to all the stakeholders, preparation of People’s Biodiversity Register (PBR’s), declaration of biodiversity heritage sites, in situ conservation of biodiversity zones etc. The Madhya Pradesh state Biodiversity Board was also constituted in 2004 followed by the framing of the state Biodiversity Rules. The Board has been actively performing its obligations under the Act and has submitted an annual report to the NBA right from 2004 onwards. The expert groups/ technical support groups are formed in 50 districts of Madhya Pradesh to guide BMCs in understanding the biodiversity acts, rules and formulation PBRs and make adequate campaign at local level41. Madhya Pradesh has a record 23,471 BMC’s in 50 districts, the highest number of BMC’s in a state. This statistic reveals to a great extent, the progress made by the Madhya Pradesh state govt. in the area of biodiversity. Apart from this, they have also undertaken innovative schemes and methods to spread awareness about biodiversity conservation and equipped various stakeholders with the right training in dealing with such issues. Similarly, the Kerala Biodiversity Board, which was constituted in 2006 released its official rules in the year 2008. Since its formation, the board has been actively involved in identifying areas of rich biodiversity in Kerala and engaging with all the stakeholders in the state. They have constituted 1,034 BMC’s in 941 Gram Panchayats, 87 Municipalities and 6 corporations42. While some states have made excellent strides, some states are yet to constitute SBB’s and other have not formulated BMC’s. It is here that the NBA has a role to play, in guiding states in setting up SBB’s. The NBA should play a more active role in overseeing the activities of SBB’s and other institutions under the Act.

http://www.thehindu.com/todays-paper/tp-miscellaneous/tp-others/karnataka-biodiversityboard/article3491741.ece, (Last Accessed at: 15:32 PM, 17/03/2018) 41 See Pravat Chandra & Nigamananda, Implementation of Biodiversity Act in India, 24th October, 2011, Available at: https://www.rcdcindia.org/PbDocument/81a3eb27083118c-0e2b-4105-948f344a088c47e3RCDC_Implementation%20of%20Biological%20Diversity%20Act%20in%20India.pdf, (last accessed at: 15:52 PM, 17/03/2018) 42 See kerala State Biodiversity Board, Available at: http://www.keralabiodiversity.org/index.php/activities/biodiversity-management-committees-bmcs, (last accessed at: 17:12 PM, 17/03/2018)

18

IV.

Conclusion

While India has been pioneering in its international environmental obligations by participating in most of the world conferences and by signing multilateral conventions, Indian states have defaulted in their obligations arising from the Biodiversity Act, 2002 barring a few. Many states like Karnataka, Madhya Pradesh, Kerala, the newly constitutes Telengana have taken giant strides in achieving their obligations, while states like Tamil Nadu, Bihar and others are struggling to fill vacancies in the BMC’s. This disparity in state-wise implementation results from the inability of the National Biodiversity Authority (NBA) to effectively monitor and lobby states to perform their obligations. The NBA should be playing an active role in regulating the role of states under the Biodiversity Act, 2002. Since, India being a country that is rich in flora, fauna and other biodiversity resources, effective implementation of the Biodiversity Act is a must to safeguard its precious resources and promote sustainable use. The NBA can set-up deadlines before which states are to set-up SBB’s and regularly monitor their progress frequently. The need of the hour, is therefore to spread awareness about the importance of sustainable use of biological resources among various stakeholders and monitor the performance of various institutions under the Act.

19

V.

Bibliography

I.

Primary Sources :-

International Conventions: 

Convention on Biodiversity, 1992



Convention on International Trade of Endangered Species of Wildlife Fauna and Flora, 1973,



Convention for the Protection of World Cultural and Natural Heritage, 1972,



Ramsar Conservation on Wetlands, 1971

Domestic Statutes/Constitution: 

Biological Diversity Act, 2002

20



Biological Diversity Rules, 2004



Constitution of India, 1950

II.

Secondary Sources :-

Books: 

P. Leela Krishnan, ENVIRONMENTAL LAW CASE BOOK, (2nd edition, 2015), LexisNexis



Arjya B Majumdar & Debosmita Nandy, ENVIRONMENT AND WILDLIFE LAWS IN INDIA, 2013, LexisNexis



Justice D.S.Doabia, ENVIRONMENTAL AND POLLUTION LAWS IN INDIA, (2nd edition, 2010) LexisNexis



Shyam Diwan & Armin Rosencranz, ENVIRONMENTAL LAW AND POLICY IN INDIA, (2nd edition, 2002), Oxford India Paperbacks



Srividya Raghavan, PATENT AND TRADE DISPARITIES IN DEVELOPING COUNTRIES 332, Oxford University Press, USA (2012)

Articles: 

Ashish Kothari, Politics of Biodiversity Conservation, Economic and Political Weekly, 27 (15) 749, April 1992



J.S. Singh and S.P.S. Kushwaha, Forest biodiversity and its conservation in India, The International Forestry Review, 10(2), Special Issue: The Indian Forest (2008)



Frank G. Müller, Does the Convention on Biodiversity Safeguard Biological Diversity, Environmental Values 9(1), (February, 2000)



Jessica S. Jerome, How International Legal Agreements Speak About Biodiversity, Anthropology Today, 14(6), (December, 1998)



Ajeet Mathur, Who owns Traditional Knowledge, Economic and Political Weekly, 38 (42), (October, 2003)



Vandana Shiva, Farmers' Rights, Biodiversity and International Treaties, Economic and Political Weekly, 28 (14), (Apr. 3, 1993)

21



Farhana Yamin, Biodiversity, Ethics and International Law, Royal Institute of International Affairs 71(3), (July, 1995)



Shalini Bhutani and Kanchi Kohli, Ten Years of the Biological Diversity Act, Economic and Political Weekly 47 (39), (September 2012)



Ashish Kothari and Kanchi Kohli, National Biodiversity Action Plan, Economic and Political Weekly 44(20), (May, 2009)

22