Shortly after the Convention on Biological Diversity (CBD) was ratified in 1995, South Africa put its Access and Benefit Sharing (ABS) policy process into place, making it one of the first African countries to have an ABS legal and policy framework.

The National Environmental Management and Biodiversity Act (NEMBA), Act 10 of 2004 and Bioprospecting, Access and Benefit-sharing (BABS) regulations of 2008 stipulate that companies and researchers wishing to use the country’s indigenous biological resources must have either a Biotrade or a Bioprospecting permit. If no permit has been issued by the Department of Environmental Affairs (DEA) as endorsed by the Minister, traders and bioprospectors can incur a fine or even face imprisonment.

Putting the Act and BABS regulations into practise has not been without its challenges and up until today the process can be cumbersome and time-consuming – with permits taking up to a year to be issued in some cases. Some of the elements of the application process are challenging, for instance:

1. Difficulty in identifying traditional knowledge (TK) holders. While the application process expects a TK holder to be identified, there is not always a clear community or grouping that exclusively, or even non-exclusively claim “TK” on an indigenous resource. Often origins have been lost over time and many groups have utilised the knowledge. According to the regulators a company would need to sign Benefit Sharing Agreements with every group that claimed TK on a specific resource. In addition, while some traditional uses of resources have been recorded, there are still others where there is no recorded usage, or the usage is different from that under investigation. In these cases, it is a challenge to address the TK aspect of the application and there is little flexibility in the permit process to deal with the different situations.
2. Permits required at different steps – each harvester, trader, exporter and processor is expected to be in possession of a permit – in addition to the Provincial harvesting permits that are issued. This creates a highly complex administrative burden on both companies and the DEA. If this multiplicity of permits is enforced it may lead to the replacement of South African ingredients with those from other countries or different ingredients, which would benefit neither South Africa nor companies nor the global community at large for whom products are formulated.
3. Potential stifling of academic research – while it is true that developing nations may have been exploited through uncontrolled use of biological resources by large corporates, it must also be remembered that not all research is aimed at a commercial end but rather to add to the body of knowledge. The current Bioprospecting and harvesting permit systems can make it difficult for pure academia to access resources for research purposes. This should be avoided at all costs to prevent a negative impact on the continued generation of knowledge around our indigenous resources.

The process currently involves the submission of an application form, Material Transfer and Benefit Sharing Agreements with the Access Providers (landowners or tribal authorities as the case may be) as well as a Benefit Sharing agreement together with a Traditional Knowledge (TK) holder – if such exists for the indigenous resource. It is understood that in order to sign a Benefit Sharing Agreement with the TK holder one should have made a proposal to the community / individual on the project at hand; comprehensively explained the project and potential benefits to the community and gained their buy in. This constitutes the Prior-Informed Consent (PIC).

To this end the DEA has added a Community resolution to the suite of documents to be submitted that ensures that the community is fully aware of the ramifications of the proposed project and that they have authorised a signatory to sign agreements on their behalf. Parceval has seen an increase in the awareness of communities around Benefit Sharing, but there is still a lack of education around it and monetary versus non-monetary benefits. We have been pleased to see some communities asking for more information and requesting benefits that are sustainable, such as the setting up of nurseries to create employment opportunities, for instance.

Permit applications are processed by the Bioprospecting Committee and permits are endorsed by the Minister of the Environment. This process can involve some back and forth as committee members and the Minister may make suggestions, ask questions or request changes to the structure of the agreements. A new step that is being introduced is review by a Transactional Advisor – to assess whether the benefits are appropriate for the community and the resource – a further step that ensures fairness, but may add a further time burden to an already urgently required permit.

Despite the challenges, Bioprospecting regulations in South Africa are here, and they are here to stay. Parceval has proved itself to be agile in negotiating the complexities of ABS in South Africa and is currently the holder of 5 permits and one is up for renewal. Having engaged extensively on this topic and being well aware of the difficulties, Parceval has also begun to focus on how this can become part of the company’s ethos of building sustainable and ethical supply chains. To this end Samara Foundation was born, to fulfil Parceval’s benefit-sharing obligations and offer its clients the opportunity to do the same.

The aim of Samara Foundation is higher than simply taking away the administrative burden of managing benefit-sharing projects. It is intended to also be a platform where Parceval and its clients can participate in projects that achieve larger social benefits and speak to an individual company’s own social goals.

In short, Parceval and Samara’s aim is to turn what seems to be a cumbersome duty into something achievable, while also being meaningful for all the stakeholders involved.

If you need support on your ABS or Bioprospecting, feel free to contact us at +27 (0)21 873 3895 or email consulting2@parceval.co.za