ABS Challenges: An Australian
Perspective

Its All About Understanding
Risk
Geoff Burton

Scope of Presentation
 The central role of risk

 Risk from three perspectives

 Consequential challenges

 A way forward©Jean Shannon & Associates Pty
Ltd3

ABS Challenges from thePerspective of Risk
 Corporations
 Developing countries
 Traditional biodiversity Knowledge

holders
 Scientific researchers©
©Jean Shannon & Associates Pty
Ltd4

Corporate Risks in Biodiscovery
 Definition of Risk = Anything thatthreatens shareholder value:– Regulation of the commons = a risk tocorporate access to genetic and biologicalresources– Fair and equitable benefit-sharing = risk tocorporate profit– Prospective Government regulation = risk
to companies freedom-to-operate©Jean Shannon & Associates Pty
Ltd5

Government Risks inBiodiscovery
 Definition of Risk = anything thatthreatens the legitimacy of Government
and its policies
 Access = risk of resource expropriation= risk of environmental damage
 Benefit-sharing = risk of economic loss Government regulation = risk of failure©Jean Shannon & Associates Pty
Ltd6

Indigenous Knowledge-holders’Risks
Definition of Risk = anything that damages the culture
and social and economic interests of TK holders
 Risks of TK use = possible expropriation of the knowledge= loss of economic value= damage to culture= creation of conflict within, and between,
Indigenous and local communities= IP system providing advantages for theinterests of written TK over those of oral TK holders= commodification of traditional remedies
rarely leads to economic gain e.g. Kava©Jean Shannon & Associates PtyLtd7

Responses to Risk: Corporations
 Reduction in natural product discovery

effort Reliance on alternatives e.g. synthetic
recombinant chemistry
 Transfer discovery risk to public sector
research and biotech start-ups
 Increased use of pre-CBD resources
and those outside national jurisdiction©Jean Shannon & Associates Pty
Ltd8

Response to Risk: Governments
Some developing countries:
 Discouraged natural product research Introduced restrictive ABS legislation and Seek to– transfer the burden of management andregulation of the commercialisation of genetic
resources to developed countries via a new treaty– Amend the TRIPS agreement©Jean Shannon & Associates Pty
Ltd9Response to Risk: AustralianGovernment Provide legal certainty to all parties
 Implement world’s best practice (BonnGuidelines) Work with all stakeholders – Especiallythe biotech industry
 Actively encourage investment inBiodiscovery
 Introduce safeguards for any use of TK©Jean Shannon & Associates Pty
Ltd

10

Australian ABS System
Objective
 Harness genetic resources as a vital

ecosystem service
 Safeguard the environment
 Raise the value of biodiversity and support
biotechnology
 Support Indigenous communities to make TK
available on their terms
 Create a new & potentially valuable resource
for Australia©Jean Shannon & Associates Pty
Ltd11

Responses to Risk: Indigenous
Knowledge-holders
 Display great caution
 Demand legislative TK protection
 Seek multilateral TK protection
 Considerable debate generated
 Conflicting advice given to governments
 Instances of accusations of biopiracy

generated by ANY perceived use of TK
and associated genetic resources.
©Jean Shannon & Associates Pty
Ltd

12Challenges and the Way Forward:
for developed and rapidly developingcountries Realise opportunities in current situation
 Secure market advantages now
 Mature economies and those in rapid

development can lead by example
 Change perceptions of risk and you
influence the international debate andchange outcomes©Jean Shannon & Associates Pty
Ltd13

Analysis of the Current Situation
Over reliance on synthetic recombinant chemistry
has been a financial disaster for the development ofnew drugs
 The scale of investment and involvement of publicfunded research and the biotech industry in the
discovery and development process requires legal
certainty and secure access to natural resources Demand for bio-based products is growingdramatically Rapidly developing countries do good science andhave nascent biotech Industries
 The time is right to encourage long-term biodiscovery©Jean Shannon & Associates Pty
research
14
Ltd

Analysis of the Current Situation
 There are significant economic

opportunities to be seized by developed
and rapidly developing countries
 There is sufficient time to influenceinternational negotiations throughdemonstrated reduction of risk drivers.
 The TK debate is protracted and islikely to be out of phase with thedevelopment of international trade in
genetic resources.
©Jean Shannon & Associates Pty
Ltd15

Opportunities: 5 first steps
1.

2.

Developed countries with significant
domestic biotech industries should
identify countries with access andbenefit-sharing systems and encourage
industry collaboration and investment
Industry and natural resource providing
governments should settle model,
practical, benefit-sharing agreements assoon as possible©Jean Shannon & Associates Pty
Ltd16

Opportunities: 5 first steps
3. Countries with open access and benefitsharing systems should work with industry
to ensure that their systems continue tomeet needs of industry, the scientificcommunity and resource managers.
4. National research organisations should besupported through bilateral agreements withresource providers - both domestic andforeign and
5. Successful examples of ABS partnerships
should be given maximum public exposure©Jean Shannon & Associates Pty
Ltd17

Practical considerations
 Industry and governments should collaborate

on keeping access and benefit-sharing
administrative arrangements:– Clear– Simple– Timely– With low transaction costs and Maximise regulatory and contractual certainty

for all parties©Jean Shannon & Associates Pty
Ltd18

Opportunities - Other Action
 Developed countries should support– international funding for ABS legislation– utilisation of practical tools for development ofsuch legislation – eg the Swiss Management Tool Developing countries with governanceconstraints should be encouraged to maketheir protected areas, areas of scientificresearch– including for biodiscovery and– ensuring a share of any resulting scientific andcommercial benefit flows back to protected area
biodiversity managers©Jean Shannon & Associates Pty
Ltd19

Conclusion The biodiversity in developed and in rapidly

developing countries is sufficient to support aresurgence of biodiscovery
 Successful developed country and industry
collaboration with selected resource providers
can demonstrate that the perceived risks
driving the current ABS debate are not wellfounded This demonstration can change that debate.
©Jean Shannon & Associates PtyLtd20