31 Jan

Laws dealing with Biodiversity Protection

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Content

• Biological Diversity Act, 2002
• Biodiversity Heritage Sites (BHS)
• Indian Forest Act, 1927
• Forest Conservation Act, 1980 (2023 amendment)
• Forest Situation and Key steps taken to protect Forests
• The Water (Prevention and Control of Pollution) Act of 1974
• The Air (Prevention and Control of Pollution) Act of 1981
• Environment (Protection) AcT, 1986
• Wildlife (Protection) Act, 1972

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1) BIOLOGICAL DIVERSITY ACT, 2002

• Introduction
  • In order to help it realize the objectives of CBD, India has enacted an umbrella legislation called the Biological Diversity Act 2002. India was the first country, to pass a law to uphold the CBD nationally.
  • The objective of the act are conservation, sustainable utilization, and fair and equitable sharing of benefits arising out of use of biological resources and associated knowledge.
  • The act extends to whole of India.
• The act works towards biodiversity protection in the following ways:
  • Regulation of extraction to biological resources
  • Protection of Biodiversity Heritage Sites
  • Biodiversity Management Committees play a crucial role in promoting conservation and sustainable use of biological resources within their respective areas and facilitate people’s participation in biodiversity conservation.
  • Conservation of Endangered species: The act prohibits the transfer of any endangered species, parts, or products without the permission of the State Biodiversity Board (SBB) or the NBA
• Conservation of Traditional Knowledge – the act recognizes the importance of traditional knowledge associated with biodiversity conservation and ensures its protection and preservation.
• The act recognizes the contributions of Indigenous local communities in conservation of biodiversity and a company using these resources is required to share 0.5% of the sales post tax to these ILCs. Only those companies whose turnover is more than 3 crore are required to make this payment.
• Institutional Framework for the implementation of the law
  • The act is being implemented through three tiered institutional structure
    1. National Biodiversity Authority (at central level)
    2. State Biodiversity Boards (at state level)
    3. Biodiversity Management Committees (at local level)

A) NATIONAL BIODIVERSITY AUTHORITY (NBA)

• The central government has established the NBA in exercise of powers conferred by sub-section (1)(4) of Section 8 of BDA, 2002.
• The NBA is Autonomous body and that performs facilitative, regulatory and advisory function for Government of India on issue of Conservation, sustainable use of biological resource and fair equitable sharing of benefits of use.

B) BIODIVERSITY MANAGEMENT COMMITTEE (BMC)

• Under section 41(1) of the Act, every local body of the state shall constitute a Biodiversity Management Committee within areas of its jurisdiction for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties & cultivars, domestic stock and breeds of animals and micro-organisms and chronic knowledge relating to biological diversity.
• The main function of the BMC is to prepare People’s Biodiversity Register (PBR) in consultation with local people. This register shall contain comprehensive information on availability and knowledge of local biological resources, their medicinal or any other use or any other traditional knowledge associated with it.
• They shall also be responsible for:
  • Conservation, Sustainable use and access to benefit sharing of biological resources
  • Eco-restoration of the local biodiversity
  • Feedback/Information to the Board, and the NBA in matters of IPRs, traditional knowledge etc.
  • Management of Biodiversity Heritage sites including Heritage trees, animals, micro-organisms, and Sacred Groves.
  • Conservation of traditional varieties/breeds of economically important plant species
  • Biodiversity Education and Awareness building

C) ISSUE OF FAIR AND EQUITABLE SHARING OF BENEFITS ARISING OUT OF USE OF BIOLOGICAL RESOURCES AND ASSOCIATED KNOWLEDGE

• Introduction
  • The Biological Diversity Act, 2002 regulates the extraction of biological resources through the state Biodiversity Boards and the National Biodiversity Authority.
    • Broadly, all foreign entities (companies, institutions and individuals) are within the jurisdiction of NBA while all Indian entities are the subject matter of the state board.
  • Biological resources include plants, animals and micro-organisms but exclude those which are normally traded as commodities.
  • What does the law say about sharing of Benefits?
    • Before a commercial entity extracts biological resources, it must make prior approval of the state board or the NBA and also undertake to share benefits arising out of the use of such biological entities with in the local community, which has conserved and protected these biological resources. The benefits can be in the form of monetary compensation as well as ‘joint ownership of IPRs’ and/or ‘transfer of technology’.
• Divya Pharmacy vs Union of India case: Landmark Judgment by Uttarakhand High Court on Dec 28, 2018
  • Core Issue: Whether the State Biodiversity Board could impose ‘Fair and Equitable Benefit Sharing’ as one of the regulatory functions on the Indian entities using Biological Resources.
  • Key Highlights of the Judgment:
    • Indian companies which are extracting biological resources are liable to seek prior approval as well as share part of their revenue with the local communities that are responsible for conserving and protecting such resources.
      • The court also referred to international conventions and treaties such as Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits arising from their utilization to the Convention on Biological Diversity.
    • The court held that rights of indigenous and local communities have to be protected, equally from outside as well as from within.
    • The court finally ordered that the State Biodiversity Board does have jurisdiction to demand “fair and equitable sharing of benefits’ from Divya Pharmacy and, by implication, from all Indian companies.

D) THE BIOLOGICAL DIVERSITY (AMENDMENT) ACT, 2023

• It was introduced in LS by MoEF&CC in Dec 2021 and was finally passed in the house in July 2023 and Rajya Sabha in Aug 2023.
• The amendment intends to encourage the Indian system of medicine; facilitate fast-tracking of research, patent application process; attract more foreign investment in the preservation and commercial utilization of India’s biological resources; and decriminalizes all the offences under the act.
• Key Highlights:
  1. Simplify compliance requirements for domestic companies
  2. Exempts AYUSH practitioners, local people, and communities of the area, including growers and cultivators of biodiversity, from giving prior intimation to State Biodiversity Boards for accessing biological resources for commercial utilization.
  3. Users of codified traditional knowledge and AYUSH practitioners will be exempted form sharing benefits with local communities
     • Issue/Criticism: The term Codified Traditional Knowledge hasn’t been defined by the bill or by CBD. A broad interpretation might exempt all local traditional knowledge form benefit sharing requirements.
     • Legal experts also feel that exemption to Ayush practitioners would be detrimental to ecology and go against the principle of sharing commercial benefits with indigenous communities.
  4. Removes research and bio-survey from the purview of benefit sharing.
  5. Benefit sharing will be based on terms agreed between the user and the local management committee represented by the National Authority
     • Issue/Criticism: The bill removes direct role of local communities in determining the benefit sharing provisions.
  6. Companies registered in India and controlled by Indians are now treated as Indian companies, even if they have foreign equity or partnership, thereby reducing the restrictions on them.
  7. Simplifying the IPR Process:
     • The act specifies that approval of NBA is required before applying for IPR involving biological resources obtained from India, or (ii) sealing of patent.
     • The bill says that approval would be required before the approval of IPR instead of before the application itself.
       • It further differentiates between foreign and domestic entities.
         • Foreign entities will require approval from NBA whereas domestic entities will be required to register with NBA. However, at the time of commercialization of IPR, domestic entities will need approval from NBA.
  8. The bill decriminalizes all offences under the act and provides for wide range on penalties. Further, it authorizes government officials to hold enquiries and determine penalties.
     • Issue/Criticism: Such discretion with government official may promote corruption/rent seeking.
  9. The bill allows for foreign investment in research into biodiversity. However, this investment will necessarily have to be made through Indian companies involved in biodiversity research.
  10. A new section – 36(A) has been added emphasizing on the monitoring of the Biological Resources obtained from foreign countries for use in India as per the provisions of the Nagoya Protocol on access to benefit sharing.
  11. Section 36(B) enables state government to develop strategies and plans for conservation and sustainable use of biological diversity.

2) BIODIVERSITY HERITAGE SITES (BHS)

• About Biodiversity Heritage Sites
  • They are well defined areas which have unique, ecologically fragile ecosystems – terrestrial, coastal, and inland waters and marine, having rich biodiversity comprising of any one or more of the following components:
    1. Richness of wild as well as domesticated species or intra-specific categories
    2. High endemism
    3. Presence of rare and threatened species, keystone species, species of evolutionary significance, wild ancestors of domestic cultivated species, or their varieties
    4. Past pre-eminence of biological components represented by fossil beds and having significant cultural, ethical, or aesthetic values and are important for the maintenance of cultural diversity.
• Under Section 37 of the Biological Diversity Act, 2002 (BDA) the state government in consultation with local bodies may notify in the official gazette, areas of biodiversity importance as Biodiversity Heritage Sites (BHS).
• Biodiversity Heritage Sites of India (As of Jan 2024)
  1. Arittapatti Biodiversity Heritage Site, Madurai, TN
     • This is the first BHS of TN.
     • It has rich biological and historical significance, with the presence of around 250 bird species including 3 flagship raptors species – Laggar Flacon, Shaheen Falcon, Bonelli’s Eagle and wildlife like Indian Pangolin, Python, and Slender Loris.
  2. Asramam, Kerala, Kollam
     • It hosts a unique diversity of Mangrove species with diverse flora and fauna.
     • It also has rare and endangered heritage trees of Syzygium travancoricum which is listed as CR in the IUCN list.
  3. Nallur Tamarind Grove in Devanhalli, Bengaluru, Karnataka
     • The area has some of the oldest tamarind trees, recorded age of the oldest one being 410 years.
     • The BHS is spread over 54 acres and comprises of nearly 300 trees.
     • The significant component of this popular structure is a group of old plants standing like ageless sentinels. The area has some of the oldest tamarind trees, some more than 400 years old.
  4. Hogrekan in Chikmagalur, Karnataka
     • The shola vegetation is home to many unique medicinal species.
     • It also serves as a “Wildlife Corridor” between Kudremukh and Bhadra WLS.
  5. University of Agricultural Sciences, GKVK Campus in Bengaluru, Karnataka.
     • Large biodiversity -> 13 species of mammals, 10 species of reptiles, 165 species of birds and an impressive 530 species of plants.
  6. Ambaraguda in Shimoga, Karnataka
     • A patch of primitive shola forest, known for many unique and endemic plant species.
  7. Purvatali Rai, Bicholim, North Goa
     • Sacred grove
  8. Ameenpur Lake, Sangareddy, Telangana
     • First water body to be recognized BHS.
     • A man-made lake more than 300 years old.
     • Home to many resident and migratory birds, such as flamingos, egrets, herons, cormorants etc.
  9. Glory of Allapalli in Gadchiroli, MHA
     • First BHS of MHA
     • A patch of dense original forests. Forest is pristine and so dense that hardly any sunlight reaches the forest floor.
     • The forests dates back 100s of years.
  10. Bambarde Myristica Swamps, Dodamarg, Maharashtra
  11. Ganeshkhind Garden, Maharashtra