BABS LEGISLATIVE FRAMEWORK

NAGOYA PROTOCOL ON ABS

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (in short referred to as Nagoya Protocol on ABS) was adopted by the Conference of the Parties to the Convention on Biological Diversity at its tenth meeting on 29 October 2010 in Nagoya, Japan. 

The Nagoya Protocol on ABS entered into force of 12 October 2014. South Africa became a signatory of the Nagoya Protocol on ABS on 11 May 2011 and ratified on 10 January 2013.

THE OBJECTIVE OF THE NAGOYA PROTOCOL IS THE FAIR AND EQUITABLE SHARING OF BENEFITS

The objective of the Nagoya Protocol is the fair and equitable sharing of benefits arising from the utilisation of genetic resources including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies and by appropriate funding, therefore contributing to the conservation of biological diversity and the sustainable use of its components.

THE NEMBA

Chapter 6 of the National Environmental Management: Biodiversity Act (NEMBA), (Act no. 10 of 2004) regulates exploration of biodiversity for commercially valuable indigenous genetic and biological resources and it came into force on 1 January 2006. The legislation protects interests of certain stakeholders; outlines requirements of material transfer and benefit sharing agreements; establishes Bioprospecting Trust Fund; and provides for exemption of certain activities or indigenous biological resources from the legislation. The NEMBA states that:

(a) no person may, without a permit, engage in commercialisation phase of bioprospecting involving indigenous biological resources; or; (b) export any indigenous biological resources for bioprospecting or research.

In addition, no person may, without first notifying the minister, engage in discovery phase of bioprospecting involving any indigenous genetic and biological resources. A person involved in discovery phase bioprospecting must sign a commitment to comply with the requirements of the legislation if/when commercialisation phase is reached.

BABS REGULATIONS

The BABS Regulations, 2008 made under the NEMBA entered into force on 1 April 2008 which have since been amended.

NOTIFICATION PROCESS FOR DISCOVERY PHASE

The BABS Amendment Regulations 2015 came into force on 19 May 2015 and prescribe the notification process for the discovery phase of bioprospecting involving any indigenous genetic and biological resources contemplated in section 81A (2) of the act and further prescribe the permit system set out in chapter 7 of the act insofar as that system applies to bioprospecting involving any indigenous genetic and biological resources or export from the Republic of any indigenous genetic and biological resources for the purpose of bioprospecting or any other kind of research.

THE BIOPROSPECTING FUND

In addition, the BABS Amendment Regulations set out the form and content of, and requirements and criteria for benefit-sharing and material transfer agreements and the administration process of the Bioprospecting Trust Fund.