SOUTH AFRICA: ACCESS TO GENETIC RESOURCES AND

UNCLAS SECTION 01 OF 02 PRETORIA 000169

SIPDIS

STATE FOR OES AND EB AND OES/ETC/VILLEGAS, ALSO AF/S
USDA FOR FAS, GIPSA AND APHIS
STATE PASS USTR FOR VESPINEL AND PCOLEMAN

SENSITIVE

E.O. 12958: N/A
TAGS: EAGR ETRD SENV TBIO SF
SUBJECT: SOUTH AFRICA: ACCESS TO GENETIC RESOURCES AND
BENEFIT-SHARING

REFS: A) STATE 269625; B) 04 PRETORIA 5363; C) 04 PRETORIA
5345; D) 04 PRETORIA 5285

SENSITIVE BUT UNCLASSIFIED, PROTECT ACCORDINGLY


1. (U) 1. Background and introduction.: South Africa's
National Environmental Management: Biodiversity Act became
law in mid-2004. Chapter 6 of the Act deals with
Bioprospecting, Access and Benefit Sharing, and Chapter 7
addresses the issuance of permits authorizing the use or
export of indigenous biological resources for bioprospecting
or other research. . Chapter 8 of the Biodiversity Act
gives the Minister of Environmental Affairs and Tourism
broad authority to make regulations that: designate the
relevant issuing authorities; set requirements for and
amount payable in benefit-sharing and material transfer
agreements; and govern issuance of permits. Post will
forward an electronic version of the Act to OES/ETC. The
Act is also available in pdf format at www.deat.gov.za under
the left-side "Policy and Legislation" menu.


2. (SBU) Officials at the Department of Environmental
Affairs and Tourism (DEAT) are presently drafting
implementing regulations for the Act., with an April 2005
deadline. We assume that oOfficials plan towill have to
integrate the Act with other relevant legislation and
procedures dealing with plant genetic resources and
implemented by the National Department of Agriculture (NDA).
One involved official told EST Officer that the timeframes
for implementation are staggered. The first deadline is
April 2005; the deadline for bioprospecting provisions is
January 2006. Therefore, a. At this time, many of the
procedural questions raised in Ref A do not have clear
answers. Below we try to answer as many questions as
possible based on the new law and existing procedures, and
with some informal feedback from government contacts, in the
interest of providing a timely response. We also have made
an official request for information to national focal point
Maria Mbengashe, Chief Director of Biodiversity and Heritage
at the Department of Environmental Affairs and Tourism. In
light of the role played by the National Department of
Agriculture (NDA) in managing plant genetic resources, FAS
Pretoria has also shared the questions with relevant NDA
officials. Information below is keyed to question themes
listed in Ref A para 18. End Background and Introduction..

LEGISLATION, REGULATION -- RESEARCH ON BIOLOGICAL RESOURCES


32. (U) The research and collection of biological and
genetic resources will be governed by the 2004 Biodiversity
Act, as well as existing laws on Plant Improvement, Plant
Breeders Rights and Genetically Modified Organisms that
affect plant genetic resources.

MOVEMENTS OF BIOLOGICAL SPECIMENS


4. (U) The Biodiversity Act requires permits for
bioprospecting involving indigenous biological resources and
for the export of indigenous biological resources for
bioprospecting and other research. The Act refers to
"issuing authorities" that have various responsibilities
under the Act-including the issuance of permits to export,
but does not specify which government departments and
agencies can serve as "issuing authorities." Sources tell
us that DEAT will be designated as an issuing authority;
possibly We assume that both the DEAT and also provincial
authorities and the National Department of Agriculture
(NDA),but "nothing has been decided yet."


5. (U) will be issuing authorities.

Chapter Five of the Biodiversity Act deals with "Species and
Organisms Posing Potential Threats to Biodiversity" and,
through permits and lists, governs activities (importing is
not specified) involving alien species and invasive species.
Chapter Five also empowers the Minister to require that an
environmental assessment be conducted before issuing a
permit for release of any genetically modified organism that
the Minister believes "may pose a threat to any indigenous
species or the environment." The Genetically Modified
Organisms Act of 1997 governs the import and release of
genetically modified specimens and permits are issued by the
GMO Registrar, part of the NDA, following approval by a
multi-agency GMO Executive Council.

MUTUALLY AGREED TERMS FOR ACCESS, USE OF GENETIC RESOURCES


6. (U) Chapter Six of the Biodiversity Acts describes
requirements for benefit-sharing and material transfer
agreements. The Act mentions a prescribed format, which we
assume forthcoming uture implementing regulations will
elaborate. The Act requires agreements to set out the
manner in which and extent to which the indigenous
biological resources are to be utilized but the Act does not
make specific differentiations among uses for basic science,
commercial development, and agricultural research.

STATUS OF MUTUALLY AGREED TERMS, PRIOR INFORMED CONSENT


7. (U) The Biodiversity Act attempts to protect
stakeholders' interests by requiring the issuing authority
to consider and protect the interests of any person who
provides access to the genetic resources and any indigenous
community whose traditional uses, knowledge or discoveries
related to the indigenous biological resource contribute to
or form part of the proposed bioprospecting or research. If
such an "interest" exists on the part of stakeholders, the
issuing authority may issue a permit only if (a) "the
application has disclosed all material information relating
to the relevant bioprospecting to the stakeholders" and on
the basis of that disclosure has obtained the prior consent
of the stakeholder for the provision of or access to such
resources and to the knowledge of or discoveries about the
indigenous biological resources; (b) the applicant and
stakeholder have entered into a material transfer agreement
(where relevant) and a benefit-sharing agreement; and (c)
the Minister of Environmental Affairs and Tourism has
approved the material transfer and benefit sharing
agreements. The issuing authority at its discretion may
facilitate negotiations to ensure that benefit-sharing and
material transfer agreement negotiations are carried out on
"an equal footing," but the Act does not task the authority
with negotiating specific contracts. If the Minister so
requests, the issuing authority must ensure that any benefit-
sharing arrangement agreed upon between the applicant and
stakeholder is fair and equitable.


8. (U) The Act also establishes a Bioprospecting Trust Fund,
"into which all moneys arising from benefit-sharing
agreements and material transfer agreements, and due to
stakeholders, must be paid, and from which all payments to,
or for the benefit of, stakeholders must be made." The Act
also establishes the South African National Biodiversity
Institute (Ref D). A DEAT source told EST Officer that the
provision of information to foreign researchers seeking to
obtain research/collecting/import/export permits is a
discretionary function of the new SANBI.

Chapter 8 of the Biodiversity Act gives the Minister of
Environmental Affairs and Tourism broad authority to make
regulations that: designate the relevant issuing
authorities; set requirements for and amount payable in
benefit-sharing and material transfer agreements; and govern
issuance of permits.

9. (U) Post will forward via septel any additional
information received in response to written queries made to
the National Department of Agriculture and the Department of
Environmental Affairs and Tourism.

MILOVANOVIC