Australian National Botanic Gardens

COMMON POLICY GUIDELINES

(Cartagena, November 2000):

GUIDELINES TO ASSIST IN THE PREPARATION OF INSTITUTIONAL POLICIES BASED ON THE "PRINCIPLES ON ACCESS TO GENETIC RESOURCES AND BENEFIT-SHARING"

Participating Institutions have endorsed the Principles set out in Section 3 because:

• Activities involving access to genetic resources and associated traditional knowledge should be consistent with the provisions of the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and other international, regional, national and sub-national laws and policies concerning biodiversity.
• States have sovereign rights over their own biological resources and the authority to determine access to genetic resources rests with national governments.
• Access to genetic resources and benefit-sharing is vital for the conservation and sustainable use of biodiversity.
• It is essential to establish conditions that facilitate access and support scientific research, while honouring the principles of prior informed consent and benefit-sharing.
• It is essential to share the benefits arising from the use of genetic resources and their derivatives fairly and equitably with the country of origin that provided the genetic resources and with other Stakeholders, as appropriate.
• It is essential to honour the terms and conditions under which genetic resources have been acquired.
• Cooperation among botanical institutions and with governments will facilitate access to genetic resources and benefit-sharing.

It is the intent of this document to promote a harmonised basis for access and benefit-sharing among botanical institutions.

The objective of these Common Policy Guidelines is to provide background guidance to assist Participating Institutions implement the "Principles on Access to Genetic Resources and Benefit-Sharing for Participating Institutions" set out in Section 3 of this document;

SECTION 3 – PRINCIPLES ON ACCESS TO GENETIC RESOURCES AND BENEFIT SHARING FOR PARTICIPATING INSTITUTIONS

Participating Institutions endorse the following Principles on access to genetic resources and benefit-sharing:

Convention on Biological Diversity (CBD) and laws related to access to genetic resources and associated traditional knowledge and benefit-sharing

• Honour the letter and spirit of the CBD, The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and laws relating to access and benefit-sharing, including those relating to traditional knowledge.

Acquisition of genetic resources

• In order to obtain prior informed consent, provide a full explanation of how the genetic resources will be acquired and used.
• When acquiring genetic resources from in situ conditions, obtain prior informed consent from the government of the country of origin and any other relevant Stakeholders, according to applicable law and best practice.
• When acquiring genetic resources from ex situ collections (such as botanic gardens), obtain prior informed consent from the body governing the ex situ collection and any additional consents required by that body.
• When acquiring genetic resources from ex situ sources, whether from ex situ collections, commercial sources or individuals, evaluate available documentation and, where necessary, take appropriate steps to ensure that the genetic resources were acquired in accordance with applicable law and best practice.

Use and supply of genetic resources

• Use and supply genetic resources and their derivatives on terms and conditions consistent with those under which they were acquired.
• Prepare a transparent policy on the commercialisation (including plant sales) of genetic resources acquired before and since the CBD entered into force and their derivatives, whether by the Participating Institution or a recipient third party.

Use of written agreements

• Acquire genetic resources and supply genetic resources and derivatives using written agreements, where required by applicable law and best practice, setting out the terms and conditions under which the genetic resources may be acquired, used and supplied and resulting benefits shared.

Benefit-sharing

• Share fairly and equitably with the country of origin and other Stakeholders, the benefits arising from the use of genetic resources and their derivatives including non-monetary, and, in the case of commercialisation, also monetary benefits.
• Share benefits arising from the use of genetic resources acquired prior to the entry into force of the CBD, as far as possible, in the same manner as for those acquired thereafter.

Curation

• In order to comply with these Principles, maintain records and mechanisms to:
• record the terms and conditions under which genetic resources are acquired;
• track the use in the Participating Institution and benefits arising from that use; and
• record supply to third parties, including the terms and conditions of supply.

Prepare a policy

• Prepare, adopt and communicate an institutional policy setting out how the Participating Institution will implement these Principles.

In this document, the following terms have the following meanings:

Accession means a sample or specimen of biological material incorporated into an ex situ collection;

Access to genetic resources means the permission to acquire and use genetic resources;

Acquisition means obtaining possession of a material or resource, through collection or receipt;

Benefit-sharing means the sharing of benefits arising from the use, whether commercial or not, of genetic resources and their derivatives, and may include both monetary and non-monetary returns;

Biological material includes, but is not limited to, plants, plant parts or propagation material (such as seeds, cuttings, roots, bulbs, corms or leaves), fungi or other fungal material, and any other material of plant, animal, fungal, microbial or other origin and the genetic resources contained therein;

Biological resources includes, but are not limited to, organisms or parts thereof, populations or any biotic component of ecosystems of actual or potential value, including genetic resources;

Botanic garden means, but is not limited to, an institution maintaining documented collections of living and/or preserved plant accessions for purposes such as scientific research, conservation, sustainable use, display and education;

Commercialisation means applying for, obtaining or transferring intellectual property rights or other tangible or intangible rights by sale or licence or in any other manner, commencement of product development, conducting market research, and seeking pre-market approval and/or the sale of any resulting product;

Country of origin of genetic resources means the country which possesses those genetic resources in in situ conditions;

Derivatives includes, but are not limited to any progeny, extracts and compounds obtained from genetic resources and analogues of those compounds;

Ex situ collection means managed, documented biological material maintained in conditions other than in situ;

Explanatory Text means the document [being] developed to accompany these Common Policy Guidelines;

Genetic resources means any material of plant, animal, fungal, microbial or other origin containing functional units of heredity of actual or potential value;

Herbarium means a reference collection of preserved and documented plant specimens, including those that are dried and pressed and those that are preserved in liquid;

In situ conditions means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties;

Participating Institution means any botanic garden, herbarium or other institution which endorses the "Principles on Access to Genetic Resources and Benefit-Sharing for Participating Institutions" set out in Section 3 of this document and which has agreed to develop an institutional policy to implement the Principles;

Principles means the text set out in Section 3.

Prior informed consent means the consent of the government of the country of origin and of any other appropriate Stakeholders which must be obtained by the Participating Institution prior to gaining access to genetic resources. It must be based on full disclosure of information, such as the intended use of those genetic resources;

Provider means any individual or organisation, whether governmental or non-governmental, that provides genetic resources or derivatives to a Participating Institution;

Recipient means any individual or organisation, whether governmental or non-governmental, that acquires genetic resources or derivatives from a Participating Institution with its consent;

Stakeholder means an individual, organisation or group whether formal or informal, affected by, or with an interest in, the activities relating to the acquisition, use or supply of genetic resources or their derivatives. Stakeholders involved in conservation and the granting of collecting permits and prior informed consent for access may include relevant departments of government, local authorities, private individuals such as landowners, indigenous peoples, local communities, farmers and non-governmental organisations. Stakeholders such as these are often described in law relating to access and benefit-sharing;

Written agreement means any form of written agreement between two or more organisations or individuals setting out the terms and conditions under which one party will transfer biological materials. What constitutes a written agreement can take many forms, ranging from an exchange of letters and the granting of a collecting permit based on a completed application, to a shipping notice or a detailed contract (sometimes known as a material transfer agreement or access and benefit-sharing agreement). A range of different written agreements is set out for illustrative purposes in the Explanatory Text.

SECTION 5 - ACQUISITION

5.1.1 When it collects or otherwise gains access to genetic resources, each Participating Institution will abide by international and national applicable laws, regulations and best practice.

5.1.2 When obtaining access to genetic resources from in situ conditions, each Participating Institution will:

1. where required, in accordance with applicable law, obtain, in writing, the prior informed consent of the government of the country of origin;

   and will make reasonable and sincere efforts to:

2. obtain and record the prior informed consent of other Stakeholders, as appropriate, for access to and use of the genetic resources concerned and associated knowledge;
3. ensure that any collection, import, export and other handling of the genetic resources has been in accordance with all applicable law; and
4. clarify, in writing based on a full explanation of how the genetic resources will be acquired and used, the terms and conditions under which the materials are acquired and can subsequently be used, particularly whether the materials or their derivatives may be supplied to third parties and/or commercialised.

5.1.3. When obtaining access to genetic resources from documented ex situ collections, each Participating Institution will:

1. obtain, in writing, prior informed consent from the officer authorised to agree terms and conditions of access on behalf of the ex situ collection, and such other consents required as indicated by that officer for access to the genetic resources concerned and for their use;

   and will make reasonable and sincere efforts to:

2. obtain from the authorised officer of the Provider a written statement that the genetic resources were acquired and are being supplied in accordance with all applicable law and that the Provider is entitled to supply them to the Participating Institution;
3. ensure that the export of the genetic resources or their derivatives from the country where the Provider is based, and import to the country where the Participating Institution is based, are in accordance with all applicable law; and
4. clarify, in writing, based on a full explanation of how the genetic resources will be acquired and used, the terms and conditions under which the materials are acquired and can subsequently be used, particularly whether the materials or their derivatives may be supplied to third parties and/or commercialised.

5.1.4 When obtaining access to genetic resources from ex situ sources other than those in Section 5.1.3. above, for instance from commercial sources or individuals, each Participating Institution will ensure that the acquisition conforms with applicable law and best practice, and in cases where there is no applicable law, will, if appropriate, evaluate available documentation and make reasonable and sincere efforts to ascertain from the Provider that the materials were obtained in accordance with the CBD and best practice.

5.2 Use of Written Agreements to Clarify Terms and Conditions of Acquisition

5.2.1 When obtaining access to genetic resources, each Participating Institution will make reasonable and sincere efforts to clarify in writing the respective roles, rights and responsibilities of the Participating Institution, the Provider, the country of origin and relevant Stakeholders, as appropriate, in activities involving the use of genetic resources.

SECTION 6 – USE

6.1 Use where Terms and Conditions are Clear

6.1.1 Participating Institutions will only use genetic resources for purposes consistent with the terms and conditions under which they were acquired. If a Participating Institution wishes to use such genetic resources for purposes other than those allowed by the terms and conditions under which the material was originally acquired (such as for commercial use when access was granted for non-commercial purposes), the Participating Institution will obtain approval from the Provider for such use and should specify in writing the terms and conditions of use, including fair and equitable benefit-sharing as set out in Section 9 below.

6.2 Use where Terms and Conditions are not Clear

6.2.1 A Participating Institution may wish to commercialise genetic resources (or their derivatives) for which the terms and conditions under which they were acquired are not clear. In this case:

1. if the genetic resources were acquired after the entry into force of the CBD, each Participating Institution will obtain the informed consent of the Provider (or, if the Provider is not known, the country of origin), prior to commercialising the genetic resources, and should specify in writing the terms and conditions of use, including fair and equitable benefit-sharing as set out in Section 9 below.
2. if the genetic resources were acquired prior to the entry into force of the CBD, each Participating Institution will share benefits arising from their commercialisation according to Section 9, and will clarify, in the policy on commercialisation referred to in the Principles, whether, prior to commercialisation, they will obtain the informed consent of the Provider (or, if the Provider is not known, the country of origin).

SECTION 7 – CURATION

7.1 Collection Management

7.1.1 Each Participating Institution acquiring genetic resources will make reasonable and sincere efforts to record and maintain data on their acquisition, including information on the Provider; country of origin; collector; and, if available, dates, accession numbers, taxon names, etc; prior informed consent and terms and conditions of use; and other relevant data associated with the acquisition of accessions in its collections in order to be able to implement the Principles.

7.1.2 Each Participating Institution will make reasonable and sincere efforts to record and maintain information concerning the use of genetic resources and their derivatives by that Participating Institution, and the benefits to that Participating Institution arising from such use.

7.1.3 Participating Institution will make reasonable and sincere efforts to record and maintain data on the supply of genetic resources and their derivatives, including information on the Recipient and the terms and conditions of access and benefit-sharing under which they were supplied. When providing genetic resources and their derivatives to a Recipient, each Participating Institution will also provide relevant data on their acquisition to the Recipient, as described in Section 7.1.1, particularly information on prior informed consent and conditions of use.

7.1.4 In order to be able to fulfil its commitments in the Principles now and in the future, each Participating Institution will develop and implement appropriate mechanisms to track the acquisition of genetic resources, the different uses of genetic resources and their derivatives held in its collections, their supply to Recipients, and the benefits that arise from their use.

7.2. Staff Management

7.2.1 Each Participating Institution will establish systems of staff management and individual responsibilities for the implementation of and compliance with the Principles.

SECTION 8 - SUPPLY

8.1 Supply of Genetic Resources

8.1.1 Each Participating Institution may supply, whether by way of a gift, sale or loan, genetic resources or their derivatives to other Participating Institutions and third parties for conservation, research, public display, education and other purposes.

8.1.2 At the time of supplying genetic resources or their derivatives, each Participating Institution will, consistent with its policy on commercialisation referred to in the Principles, clarify with the Recipient, whether the supply is for commercial or for non-commercial purposes.

8.1.3 When supplying genetic resources or their derivatives, each Participating Institution will honour any terms and conditions to which it committed when acquiring the genetic resources, such as any terms and conditions set out in written agreements.

8.1.4 To the extent possible, when supplying genetic resources or their derivatives, each Participating Institution will treat genetic resources acquired prior to the entry into force of the CBD and those acquired after its entry into force in the same manner.

8.2 Use of Written Agreements to Clarify Terms and Conditions of Supply

8.2.1 When supplying genetic resources or their derivatives, each Participating Institution recognises the need to supply genetic resources under written agreements, which obliges each Recipient:

1. to share benefits arising from its use of the genetic resources and their derivatives fairly and equitably as set out in Section 9.
2. not to commercialise the genetic resources or their derivatives without the explicit consent of the Participating Institution providing them; and
3. not to pass the genetic resources or their derivatives on to third parties without ensuring that the third parties enter into written agreements containing terms and conditions that are no less restrictive.

SECTION 9 - BENEFIT-SHARING

9.1 Commitment to Share Benefits

9.1.1 Each Participating Institution will make reasonable and sincere efforts to share the benefits arising from the use of genetic resources and their derivatives fairly and equitably with the country of origin and other Stakeholders, as appropriate.

9.1.2 To the extent possible, each Participating Institution will share the benefits arising from the use of materials acquired prior to and after the entry into force of the CBD in the same manner.

9.2 Benefits

9.2.1 The object of sharing benefits is to achieve fairness and equity and to create incentives and provide resources for the conservation of biological diversity and the sustainable use of its components.

9.2.2 Benefits which Participating Institutions will share, depending upon what is fair and equitable in the circumstances, including commitments made in written agreements, may include:

1. taxonomic, biochemical, ecological, horticultural and other information and data, through research results, publications and educational materials;
2. access to collections and databases;
3. benefits in kind, such as augmentation of national collections in the country of origin and support of community development activities;
4. the transfer of technology such as hardware, software and know-how;
5. training in science, in situ and ex situ conservation and management, information technology and management and administration of access and benefit-sharing;
6. institutional development, strengthening and management;
7. joint research and development, through collaboration in training and research programmes, participation in product development, joint ventures and co-authorship of publications; and,
8. in the case of commercialisation, also monetary benefits such as royalties.

SECTION 10 - IMPLEMENTATION

10.1 Develop an Institutional Policy

10.1.1 Each Participating Institution will prepare and, as appropriate, communicate its own policy setting out how it will implement the Principles, using these Common Policy Guidelines for guidance.

10.1.2 Participating Institutions may develop such policies individually or collectively, as groups or networks of institutions.

10.1.3 In order to reflect changes in international, national and other applicable law and acknowledged best practice, it may revise its own policy periodically.

10.2 Broadening Participation

10.2.1 The Participating Institutions endorsing the Principles are committed to working with governments and the broader botanical community, including individuals, organisations and groups dealing with genetic resources in order to develop a harmonised basis for access to genetic resources and benefit-sharing.

Annex 2  Model Material Acquisition Agreement

Annex 3  Model Material Supply Agreement

Members of the group represented their Botanic Gardens in developing the wording of the Principles and the Common Policy Guidelines agreed at the Workshop in Cartagena, Colombia
(6-9 November 2000)