AUSTRALIA: ACCESS TO GENETIC RESOURCES IN ADVANCE

UNCLAS SECTION 01 OF 04 CANBERRA 000225

SENSITIVE
SIPDIS

STATE FOR OES/ENRC SEYMOUR

E.O. 12958: N/A
TAGS: EAGR SENV TBIO AS
SUBJECT: AUSTRALIA: ACCESS TO GENETIC RESOURCES IN ADVANCE
OF NEGOTIATION

REF: SECSTATE 9667


1. (SBU) Per instructions in reftel, Econoff visited David
Dutton, Director, Environment and Sea Law Branch, at the
Department of Foreign Affairs and Trade on February 12.
Dutton was identified by Australia's CBD Point of Contact,
Robyn Bromley, as the GOA official most responsible for
access and benefit sharing information. Dutton assured
econoff that Australia has a long history of taking positions
consistent with U.S. views, although the U.S. is not itself a
party. He described the Australian system of Access and
Benefit Sharing (ABS) provisions as "horribly complicated"
with multiple levels of jurisdiction and legal requirements,
but said that Australia shared U.S. concerns that any future
international framework on ABS issues not make it more
difficult to negotiate ABS agreements or otherwise stifle
legitimate research. Dutton emphasized that policies that
might be most likely to diverge from best global practices
would be around the issues of indigenous rights and
traditional knowledge, where Australia has taken steps to
ensure that the rights and benefits from resources in
indigenous areas, or derived from traditional knowledge, are
firmly enforced. Dutton said that he is planning to travel
to the U.S. at the end of March and hopes to meet with
relevant U.S. government officials dealing with ABS issues.
We will follow up with additional information on this visit
as it develops.


2. Econoff also spoke with the Commonwealth (that is, Federal
Government) Genetic Resources Manager Ben Philips at the
Department of Environment, Water, Heritage and the Arts
(DEWHA). Philips provided details on several questions in
reftel. He also noted that several other countries,
including Canada, New Zealand, Mexico, China, and South
Africa had either sent officials to Australia to examine the
ABS system, or had had their Embassies make similar
inquiries. Philips said from his point of view the current
divisions over ABS fundamentals had created "mass
uncertainty" for researchers, and that it had to be resolved
soon. It would be better for all, Philips said, if the final
outcome followed the Bonn Guidelines in substance, but any
resolution that provided some degree of certainty to
researchers would be better than the current debate.


3. (SBU) Australia has submitted a detailed submission to the
CBD on national ABS arrangements. The overall goal of the
Australian system is to provide a nationally consistent
approach while affirming the three different levels of
jurisdiction than might apply, under Australia's federal
constitutional arrangements, as parties to any ABS agreement.


4. (SBU) Questions in reftel are answered as follows:

National Legislation
--------------

Q: What are the relevant laws and procedures that researchers
must fulfill in order to conduct research about biological or
genetic resources, including research permits and visas?

A: The 2000 Environmental Protection and Biodiversity
Conservation Act (EPBC) provides overarching authority to the
Minister for the Environment and Australian federal
departments to oversee Australian policy on biodiversity and
environmental protection. Legislation to govern specific
access to genetic resources and ensure benefit-sharing has
been established by the Federal Government, in the State of
Queensland, and the Northern Territory. The other state and
territory governments in Australia are considering, or are
Qterritory governments in Australia are considering, or are
well-advanced in the process of developing similar
frameworks.

Q: Which government agencies are responsible for issuing such
permits and supervising researchers? Is this done at the
national, state, or local level? At multiple levels? Are
the terms and conditions that address the concept of mutually
agreed terms for research permission and the sharing of
benefits general or specific (i.e., geared to the specific
collection activity)?

A: Biodiscovery in Commonwealth (Federal) areas is governed
by the Environment Protection and Biodiversity Conservation
Regulations 2000 (the Regulations). Under the Regulations,
persons seeking access to biological resources must apply to
the Department of the Environment and Water Resources for a
permit. Commonwealth areas include Australia's national

CANBERRA 00000225 002 OF 004


parks system, restricted areas, and Commonwealth waters.

The Queensland Government's Biodiscovery Act 2004 sets out a
framework regulating biodiscovery, with the purpose of
facilitating sustainable access to Queensland's biodiversity
and ensuring the fair and equitable sharing of any benefits
derived from these activities with the State of Queensland.
The Act applies to resources on land or waters in Queensland
that are not owned or possessed privately.

The purpose of the Act is achieved through a benefit sharing
regime based on contractual Benefit Sharing Agreements and
Biodiscovery Plans (administered by the Department of State
Development) and a permitting regime (administered by the
Environmental Protection Agency) involving a single
Biodiscovery Collection Authority for State lands or
Queensland waters.

Biodiscovery in the Northern Territory is covered by the
Biological Resources Act 2006 (the Act). Under the Act, a
person who wishes to engage in biodiscovery for scientific or
commercial reasons in any part of the Northern Territory must
obtain a permit.

Applications for a permit can be made to the Parks and
Wildlife Commission or the Fisheries Group. A permit will
not be issued until the applicant has obtained written prior
informed consent from the provider and a benefit-sharing
agreement. Unlike in Queensland, this includes situations
where the access provider is a private citizen. The Northern
Territory government can also issue a certificate of
provenance if requested.

Victoria has a functional administrative system for
permitting that largely mirrors those found in Queensland and
the NT, but has no formal legislative framework to govern it.

Tasmania is likely to implement a similar legal framework
within a period of months, Philips said.

Permits for the collection of biological specimens
-------------- --------------

Q: What are the procedures for obtaining a permit to collect
biological specimens? Who issues these permits? Are there
general or specific terms and conditions that address the
concept of mutually agreed terms on the use of these
specimens and the sharing of benefits?

A: See above for description of three different authorities.
According to Philips, genetic resources research in Australia
is still largely at the basic biodiversity level, with little
move towards commercialization, and that has meant that
general terms and conditions are preferred over extremely
specific contracts, as little is known about samples before
they are transferred for study.

Movement of biological specimens
--------------

Q: What are the procedures, terms, and conditions for
obtaining a permit to EXPORT non-CITES biological specimens
(if any)? Who issues these permits?

A: DFAT is not aware of any specific regulations that govern
specifically import or export of non-CITES biological
specimens. Import and export of specimens would be subject
to Australian quarantine and customs regulations.

Q: What are the procedures, terms, and conditions for
obtaining a permit to IMPORT non-CITES biological specimens
(if any)? Who issues these permits?

A: See above.

Q: Are there rules for internal shipment of specimens?

A: No.

Q: Are there additional phyto- or zoo-sanitary requirements
and permits needed for movement of specimens?

A: Australian quarantine and customs requirements are
famously strict and rigorously enforced, for phyto- and
Qfamously strict and rigorously enforced, for phyto- and
zoo-sanitary reasons.


CANBERRA 00000225 003 OF 004


MAT
---

Q: What are the relevant laws and procedures for negotiating
mutually agreed terms for access to and/or use of genetic
resources? Which government agencies are responsible?

A: Where not otherwise specified above, MATs would be subject
to Australian Common Law. The Nationally Consistent Approach
for Access to and the Utilisation of Australia's Native
Genetic and Biochemical Resources provides guidance that any
MAT negotiated should "give consideration to Annex I and II"
of the Bonn Guidelines, and provides for model MAT agreements
to be developed by the GOA.

Q: Do these agencies differentiate among uses for basic
science, commercial development, and agricultural research?
If so, how?

A: Australia recognizes the importance of encouraging access
for non-commercial scientific research, particularly
taxonomic research. To that end, the requirements for
obtaining access to Commonwealth owned or managed genetic
materials for non-commercial scientific research is more
flexible and less involved than for commercial scientific
research. In place of an access and benefit-sharing
agreement, the permit applicant is simply required to obtain
written permission from the access provider of the resource
to enter a Commonwealth area and remove samples.
A straightforward statutory declaration must also be made
which includes agreeing to certain obligations. These include
accepting the obligation to negotiate a full benefit-sharing
agreement should the purpose of research and development
change, and to obtain permission from the access provider
before passing the sample on to anyone else.

Q: Do they require the disclosure of country of origin of
genetic resources in patent applications that potentially
might use those genetic resources as a condition for
obtaining research, collecting, and/or export permits?

A: No.

Status of MAT and PIC in host country
--------------

Q: Are there coordinating processes (interagency groups,
civil society forums, etc) for the development of MAT and PIC
regulations, issues, and processes?

A: The Biodiversity Working Group is an expert level body
composed of Commonwealth and State officials, from all states
and territories, which drafted the Nationally Consistent
Approach for Access to and the Utilisation of Australia's
Native Genetic and Biochemical Resources, and meets regularly
to consider ABS and other biodiversity issues. There is no
federal agency with constitutional authority to override or
coordinate the various statutory authorities.

Q: Has the host country identified national authorities
responsible for:

-- Granting access to genetic resources?

A: The national authority (which extends only to resources on
commonwealth lands or waters) is the Director for Genetic
Resources Management Policy at the Department of Environment,
Water, Heritage and the Arts (DEWHA).

-- Negotiating specific contracts for commercialization of
genetic resources?

A: The national authority (which extends only to resources on
Commonwealth lands or waters) is the Director for Genetic
Resources Management Policy at the Department of Environment,
Water, Heritage and the Arts (DEWHA).

-- Receiving financial benefits from ABS contracts (such as
national, regional, or conservation trust funds)?

A: The Regulations require financial benefits accrue to the
managers of the resources, potentially including indigenous
groups or environmental trusts. Non-monetary benefits, in
Qgroups or environmental trusts. Non-monetary benefits, in
terms of scientific information enhancing the global store of
knowledge, is a key element in model ABS agreements in
Australia.

CANBERRA 00000225 004 OF 004



Did the CBD focal point have this information readily
available?
--------------
--------------

A: Australia has posted all relevant information, and links
to state authorities, on their website at:
www.environment.gov.au/biodiversity/index.htm l.

Q: Does the host government have general information that it
gives to foreign researchers seeking to obtain
research/collecting/import/export permits? If so, please
provide copies.

A: Copies of biodiversity regulations and model agreements
are available at the
www.environment.gov.au/biodiversity/index.htm l website.

CLUNE