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With its first biopiracy lawsuit, the country hopes to set a precedent for introducing biotech crops while conserving biodiversity and local community rights

 

By Seema Singh | Oct 20, 2011

 

Every inch of the auditorium at Bangalore’s Central College campus was filled. Outside, it was nothing short of a spectacle, with protestors armed with brinjal cutouts and faces painted purple. Inside, the then environment minister Jairam Ramesh was fielding a barrage of questions, as he held a public consultation on the release of the genetically modified Bt brinjal on February 6, 2010. Questions were flying fast and furious that day. In the midst of all that, the minister suddenly made a phone call to his office. He wanted to check if Bangalore NGO Environment Support Group’s (ESG) allegation that the Indian Biodiversity Act of 2002 had been violated was valid. Soon after the call, he quashed the allegation saying there was no violation and moved on. ESG’s point was that to develop Bt brinjal, multinational biotech firm Monsanto, Maharashtra Hybrid Seeds Company (Mahyco) and their collaborators used several local varieties of brinjal without taking approval from any national or local biodiversity authority.

 

The Act lays down a rigorous process of approval to

(a)    protect loss of biodiversity through misuse, theft, or

contamination from transgenics (where genetic material has been transferred from another organism, like in Bt brinjal); and

(b)    to safeguard the interests of farmers by ensuring they get a share

in the benefits as per the internationally applicable Access and Benefit Sharing Protocol.

 

More than a year later, ESG has a case. It’s pending before the National Biodiversity Authority (NBA). This was made public by the NBA on August 11, 2011. Barely a month later, on September 6, the minister of state for environment and forests, Jayanti Natarajan, in a reply to questions in the Rajya Sabha said: “NBA has decided to proceed as per law against the alleged violators on the basis of reports of the State Biodiversity Board

(SBB) for accessing and using the local brinjal varieties without prior approval of the competent authority.”

 

The ball is now is in NBA’s court, which took more than a year and four reminders from Karnataka SBB to take up this case. An inconspicuous regulatory body, which has had several senior bureaucrats at its helm but none choosing to exercise its power and jurisdiction, NBA today is facing the heat. It has a test case to prove that India, one of the 12 mega biodiversity countries, can protect its bio-resources. With this case, it can set a deterrent for future violations and ensure transparent commercialisation of products derived from local bio-resources.

 

As one of the architects of the Bio-Diversity Bill and noted agricultural scientist, M.S. Swaminathan, says, “It is a wake up call for India to set its house in order.”

 

That task rests with the new NBA chairman Balakrishna Pisupati who took charge in mid August in a significant career move from the United Nations Environment Programme. “You sometimes need, unfortunately, such cases for people to sit up and realise that there are important provisions in the Act to be followed.”

 

The Case

 

Bt brinjal was developed by inserting a gene from the soil bacterium Bacillus thuringiensis into the genome of various brinjal cultivars. It can withstand pests and therefore give better yields.

 

In 2009, the Genetic Engineering Appraisal Committee (GEAC) cleared Bt brinjal for commercialisation. Soon after, ESG co-founder Leo Saldanha was approached by the Karnataka Organic Farmers Association. Farmers feared the Bt crop would contaminate the regular varieties of brinjal.

 

Saldanha was aware of similar cases of contamination involving Bt cotton, where export consignments of organic cotton were rejected by France and Germany. He then began investigating if the local farmers knew which varieties of brinjal were chosen by the University of Agricultural Sciences (UAS), Dharwad for genetic modification with technology support from Mahyco, and whether they approved of this. Saldanha says he wanted to ensure that farmers, who conserved the varieties over generations, got their due under the access and benefit sharing provision of the Act.

 

Bt Brinjal was developed by ABSP-II (Agricutural Biotechnology Support Project), a consortium of public and private sector institutions funded by the United States Agency for International Development and led by Cornell University. It was formed to develop and commercialise bio-engineered products in developing countries. Mahyco, Sathguru Management Consultants, Hyderabad, and UAS are collaborators of ABSP-II.

 

It turns out nobody thought it necessary to take approval from the local farmers’ group or the apex body, NBA. Under the Act, no permission is required if varieties are chosen for conventional breeding. But if a local variety (folk varieties and land races that have been conserved by farmers over generations) is chosen for modification, whether for research or commercial use, it needs approval from the local biodiversity management committee or the NBA.

 

Monsanto, which has licensed the Bt gene to Mahyco and is a 26 percent stakeholder in the latter, says it has not violated any law. “We have not been notified by the NBA or any other authority of any case filed by the said ESG,” says Gyanendra Shukla, director, cotton-traits and corporate affairs, Monsanto India.

 

Mahyco says it has only transferred the gene in its lab to the varieties provided by UAS. The Bt brinjal seeds, which are pro-poor varieties, have been returned to UAS which will distribute it to farmers at “cost price”

and Mahyco has not made any money on it, says Usha Barwale Zehr, chief technology officer of Mahyco. She says the Bt brinjal variety that is on hold following a moratorium by Jairam Ramesh, is a different product altogether, made from Mahyco’s “proprietary germplasm”.

 

(There are two varieties of Bt brinjal. The one almost approved for release in 2009, on which Jairam Ramesh put a moratorium, was developed using germplasm which Mahyco calls its own since it’s been working on it since the 1980s. The one under question is based on more traditional variety which is very local to the region; some even have a geographical indicator or GI.)

 

Now, here’s the rub: The tripartite agreement among Mahyco, UAS, and Sathguru says the genetic modification will be carried out “with a view to product commercialisation or other distribution in certain South-Asian and East Asian territories by licensed ABSP-II collaborators.” This clearly implies the Bt varieties can be sold in India and other countries by the collaborators. So how can the stakeholders ignore the provisions of the Act?

 

“I don’t have an answer to that. To me that’s a real question and it baffles me,” says Pisupati.

 

Mahyco admits that it has learnt a lot from this case but insists it has not gained monetarily from the tech transfer. Does that also mean at no point in future would it commercialise these varieties?

 

“We have no plans yet, but in future if we have plans, we will take approval,” says Barwale Zehr.

 

Incidentally, there’s no such backward integration under the Act. Approval comes first; access and benefit sharing come later, often hand-in-hand and on mutually agreeable terms.

 

What’s at stake?

 

Though India has just 2.4 percent of the world’s land, it has 8 percent of the world’s biodiversity, and is one of the 12 mega biodiversity countries. The economic value of this immense natural resource is not yet estimated, however earlier this year the Ministry of Environment and Forests under Jairam Ramesh initiated a study in collaboration with TEEB (The Economics of Ecosystems and Biodiversity), established by the G8 and other countries that studies the economics of biodiversity loss. India expects to present a model for calculating Green Domestic Product at the 11th Conference of Parties (of Convention on Biological Diversity, or CBD) in February 2012, which it is hosting for the first time.

 

The whole idea of India ratifying the CBD in 1994 and legislating the Biodiversity Act in 2002 was to ensure that the local communities get equitable share in benefits arising out of the use of biological resources and associated knowledge.

 

If the initial approval is not taken, then there’s no control on the biological material once it is released in the field and one cannot precisely trace where it came from, explains S. Bala Ravi, a biodiversity expert at the M.S. Swaminathan Research Foundation in Chennai. “Unlike the biodiversity in the wild, agro-biodiversity can’t survive without people conserving it.” What that means is, without safeguards, it is possible for a crop variety to benefit from local resources and yet return no benefit to the community, leading to corporate control over food crops.

 

He is peeved that even in Bt Cotton, which was approved before the Act came into force, “no benefit has been shared with the farmers even though many local cotton varieties have been used”.

 

It’s this benefit sharing that the stakeholders (collaborators in ABSP-II) are either ignoring deliberately or are pitiably unaware of. Take the case of Monsanto’s application with the NBA seeking access to onion germplasm from the Indian Institute of Horticultural Research (IIHR) near Bangalore.

It’s been stalled by the Karnataka SBB as its member secretary K.S. Sugara found gaps in the information furnished.

 

“We wanted to see a copy of the agreement between Monsanto and IIHR but the latter said there was no signed agreement, only a draft agreement existed. We also wanted to know the precise location of the onion, but the application vaguely mentioned Nashik-Mumbai area in Maharashtra. If we have to ensure that local communities get their share of benefit, we have to seek details until the village level,” says Sugara.

 

Monsanto says NBA has sought further clarification from IIHR and that it is “committed” to complying with the Act including provisions related to access benefit sharing.

 

Ground Realities

 

India needs to do a lot more in this area. What has miffed the farmers, environmental workers and biodiversity experts is the harrowing experience of conserving local varieties and getting the owners their due. A year prior to the Biodiversity Act, the Protection of Plant Varieties and Farmers’ Rights Act came into force. Together they are meant to promote the seed industry as well as the interests of ordinary farmers, says Madhav Gadgil, noted ecologist and one of the architects of the two Acts.

 

But local bodies to protect biodiversity are either absent, ignorant, or in cahoots with the big companies. “Most agricultural universities have only pursued the interests of the seed companies. In Maharashtra the local bodies simply refuse to register the crop cultivars; the two Acts are being systematically sabotaged,” says Gadgil, former head of Centre for Ecological Sciences at the Indian Institute of Science, Bangalore, who is currently with Garware College in Pune.

 

Professionals like Gadgil worry that of the dozen-odd genetically engineered crops under various stages of development and consideration in India, most are only being overseen by two Central government agencies, GEAC and the Review Committee on Genetic Manipulation (RCGM), which only look after the field and lab testing and don’t track the parental material or lineage of the crop. “Bt Okra is being field tested in West Bengal and Okra is a purely Indian crop. Still, the local community is not consulted,” says Debal Deb, a biologist and convenor of Centre for Interdisciplinary Studies near Kolkata. Deb runs the largest non-governmental seed bank in the country with over 620 traditional varieties of rice which are distributed free as seeds to local farmers.

 

There really is a grave problem at hand, agrees NBA’s Pisupati. In fact, chucking a permanent job at the UN biodiversity division to come to NBA was not an easy decision. “Everybody was surprised why I was doing this.

Normally the flow is from the other side,” he says, laughing. But he saw the potential and a good opportunity for India to not just regulate access but facilitate sustainable use and conservation.

 

“It is probably the only legislation that provides regulatory, facilitative and advisory components. How many laws in the world are like this, most are only regulatory,” he says.

 

Regardless of the scope, the Act and the NBA remain sleepy watchdogs at best. Saldanha says that the case, which entails “criminal prosecution of alleged violators”, might be “diluted” with the stakeholders thrusting the responsibility on UAS. However, the provisions of the Act (Section 3 and

41) make it a watertight case. “If the NBA doesn’t move the court, any citizen of the country can, under the provisions of the Act,” he says.

 

Pisupati says he is investigating. To him the issue essentially is of unawareness and utter lack of patience on the part of the resource seekers to “understand the Act”. Still, he doesn’t want people to be pre-emptive as “it’s learning for all”. “We will identify the action and move it in the court of law; the responsibility also lies with the judiciary to take it forward.”

 

How far will it go, we’ll know in the next few weeks or months. “They [NBA] certainly have the authority and they should exercise it,” says Swaminathan.

 

The Big Fight

 

The Two Sides

The biotech firms Monsanto, Mahyco and others argue that the pest-resistant Bt brinjal will benefit farmers by increasing yield and reducing use of pesticides. Activists say, they didn’t take permission required by law when using genetic material from local varieties of brinjal.

 

Why It Matters

India is one of the 12 mega biodiversity countries. It needs to protect this biodiversity while ensuring commercialisation of GM products. Without safeguards, a GM crop variety could dominate, leading to corporate control over food crops. Also, communities should get a share in benefits arising from the use of biological resources and knowledge.

 

What Next?

How this case is resolved will not only impact the commercialisation of other GM crops in the country which are under study but will also set a sustainable cycle of conservation and new product development.

 

This article appeared in Forbes India Magazine dated 21 October, 2011

 

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