Current Legislative Efforts in Brazil to Regulate Access to Genetic Resources
Executive Report
by Jordan Erdos

December/Diciembre 1999

The Convention on Biological Diversity (CBD), signed in 1992 at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, requires contracting parties to approve legislation that will advance national biodiversity protection. Among the challenges set forth in the CBD is the call for effective regulation of access to genetic resources (AGR). This report examines the efforts being made by Brazil to address AGR issues.

Genetic resource access does not constitute a single policy heading, but rather, requires efforts in three crucial policy areas: the environment, human rights and intellectual property rights (IPR). This tripartite foundation for AGR regulation consists of pre-existing laws and regulations at the national, as well as international, level. Failure to adequately balance the demands of the three policy areas could result in AGR legislation that falls short of achieving its aims by catering to a single constituency.

At the federal level in Brazil, Congress is working with three bills addressing the regulation of AGR. Two of the bills -- No 306/95, introduced by Senator Marina Silva and No 4579/98, introduced as companion legislation by Deputy Jacques Wagner -- have been crafted with public input and participation. The third bill, introduced by the Executive power, was formulated in response to Senator Marina's bill by agency bureaucrats meeting behind closed doors.

Because of the different circumstances from which these bills emerged, each addresses the issue of AGR in a manner reflective of its origin. Particularly distinct is the way that the bills propose to authorize potential commercial research. The Marina and Jacques Wagner bills call for the creation of a Genetic Resource Commission comprised of representatives from the numerous stakeholders involved, such as the scientific community, local communities and indigenous populations, non-governmental organizations (NGOs), in addition to federal, state and local government representatives. The Executive bill aims for a less bureaucratic process, allowing the Executive power to assign a deliberative council and a technical assessment committee.

The bills also differ in their definitions of key terms relating to AGR, such as "genetic resource," which the Marina and Jacques Wagner bills differentiate from "biological resource" by vesting the former definition with a clear economic nature. The Executive bill, on the other hand, prefers the term "genetic patrimony," reinforcing the federal ownership of the resources. This ownership is clear in the legal definition of genetic patrimony, which the Executive bill considers as goods belonging to the Union. The Marina bill establishes genetic resources as "public goods of the Union for special use," and the Jacques Wagner bill defines them as "goods in the public interest."

While reconciliation of the differences between these bills has kept them frozen in Congress, a number of states have begun to pass their own AGR legislation. The Amazon states of Acre and Amapa have both approved statewide AGR legislation. In the case of Acre, the legislation was passed in response to a particular case of biopiracy involving an NGO that was illegally cataloguing native use of medicinal plants. The Amapa legislation arose out of a larger program aimed at sustainable development that includes a police force focused exclusively on environmental protection and education (the Environmental Battalion). While there is a question of jurisdiction regarding genetic resources and AGR, there has been no federal challenge to the state laws.

The success of any federal legislation hinges upon addressing a variety of concerns. One concern, often cited by critics of the Marina bill, is the fear of bureaucracy. Opponents argue that research in Brazil has declined since the introduction of Decree 98.830, which requires foreign researchers to fill out extensive paperwork and await its processing through the bureaucratic structure. At present, there is no proof that this is the case. This report recommends that a study of Decree 98.830 be conducted to determine exactly what its effect has been.

Another concern addresses the question of representation and participation. The Executive bill, drafted behind closed doors with no public participation, is clearly not interested in incorporating stakeholder interests and concerns. The Marina and Jacques Wagner bills, while drafted with public participation, can still learn from the experiences of Acre and Amapa and ensure that participatory meetings truly engage and involve stakeholders and do not just call for the participation of local representatives as a form of political tokenism. It is particularly fundamental for policymakers to communicate the issue in a manner that can be understood by traditional populations affected by the regulation of AGR.

Perhaps the most difficult issue that needs to be addressed is that of choosing representation to participate in the drafting of legislation and, more importantly, to determine who should form the "supercommittees" that would decide whether or not to grant AGR. The form of leadership across indigenous communities is not uniform, and too often policymakers seek to apply Western models of leadership to the more complex indigenous structure. During the past decade, indigenous communities have formed a number of political organizations, making representation decisions less complicated. Still, there is difficulty in determining whether the organizations truly represent the majority, and there is often, as with all political organizations, internal conflict that could obfuscate the issue. The report examines two successful, regional organizations: the Coordinating Body of Indigenous Organization of the Brazilian Amazon (COIAB) and the Union of United Indigenous Nations of Acre and the Southern Amazon (UNI/AC).

Policymakers need to ensure that their message is reaching the appropriate parties. States must build partnerships with stakeholders and disseminate accurate information regarding access to genetic resources. Potential researchers must understand what is permitted under the law. Local communities must be able to identify the threat of biopiracy and know how to respond through legal channels. On the federal level, it is time for Brazilian policymakers to recognize the fear of biopiracy in the Amazon.

Implementation and enforcement of any resulting AGR legislation will depend upon the involvement of various actors and stakeholders. Education is fundamental. It would be worthwhile for policymakers to consider some form of briefing/debriefing strategy for researchers entering and departing the country, guaranteeing that they are aware of the law and are operating within a legal framework. Even before this occurs, Brazilian embassies and consulates should be able to red flag research proposals that could lead to biopiracy. Likewise, public information campaigns aimed at the foreign scientific community would help clear misconceptions.

Policymakers must also determine the role of existing agencies in enforcement and encourage communication between agencies at all levels, from municipality to state to federal government. The primary federal environmental regulatory agency, IBAMA, must coordinate with state agencies to focus upon and respond to suspected illegal actions.

Finally, the federal government should recognize the network of NGOs and traditional organizations working in the Amazon region. No policy or program will ever be successful without the full knowledge and participation of the local communities affected. It is time for the government to communicate and work with grassroots organizations, sharing resources, materials and tools as needed.

The successful regulation of access to genetic resources requires a concerted effort by all parties involved to work together in the common interest of protecting the nation's rich biological and cultural diversity. Failure to act will result in the depletion of natural resources and the erosion of knowledge acquired over generations. No one will benefit once there is no longer an incentive to explore the vast, uncatalogued biodiversity and the traditional knowledge relating to that biodiversity.

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