Prodoc pims5686 SouthAfrica National abs project

ANNEX X-2. Project Context & Baseline: ABS frameworks & Species-value-chain interactions

1) Status Quo of the Implementation of Nagoya Protocol in South Africa

Table . Descriptive Results from the ABS Tracking Tool, Section 1

Capacity to ratify and implement basic measures of the Nagoya Protocol (NP)
1) Has the country carried out a stocktaking and assessment of ABS issues including policy-, legal- and regulatory-frameworks, and institutional capacity to develop and implement the Nagoya Protocol?	The White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity (Notice 1095 of 1997) provided the baseline for South Africa's policy, legal, regulatory framework and institutional capacity relating to ABS.
2) Did the country sign and ratify the Nagoya Protocol (NP)?	South Africa signed the NP on the 11 May 2011 and ratified on the 10 January 2013.
3) Is there a national policy or legal framework governing ABS?	There are two key legislative pieces: 1) National Environmental Management: Biodiversity Act 2004 & 2) Regulations on Bio-Prospecting, Access and Benefit Sharing
4) Is there a communications and public awareness plan or campaign to explain the Nagoya protocol, including challenges and opportunities for users and providers of genetic resources?	The information on BABS is seemingly only available to internet users, and people in the know how. It is not clear whether there is a plan to reach rural communities. However, there are provisions in the BABS regulations for public participation.
Capacity to administer the measures of the Nagoya Protocol
5) Have the National Focal Point and Competent National Authority (ies) been designated and have the capacity to facilitate and administer the implementation of the protocol?	The National Focal Point and the Competent National Authority have been designated.
6) Are there clear administrative procedures for users and providers of genetic resources to develop, implement and monitor ABS agreements with proper Prior Informed Consent (PIC), Mutually Agreed Terms (MAT) and Benefit Sharing (BS) principles and guidelines	Sections 83 (Benefit Sharing Agreements) and 84 (Material Transfer Agreements) of the NEMBA (Act 2004) provide guidance. Furthermore, a guideline developed by the Department of Environmental Affairs (DEA) entitled: South Africa's Bioprospecting, Access and Benefit Sharing Regulatory Framework: Guidelines for providers, users and regulators, provides guidance.
7) Is there installed capacity to monitor compliance with the protocol and the utilization of genetic resources, including the designation of one or more checkpoints and whether benefits will support the the conservation and sustainable use of biodiversity?	Through the appointment of several environmental management inspectors (EMIs), South Africa is able to monitor compliance with the NP. The EMIs are a network of environmental enforcement officials from different government departments.
Capacity of countries to develop their endogenous research capabilities to add value to their own genetic resources
8) Is there institutional capacity (infrastructure, scientists, technicians) in the public and/or private partners to carry out the research and development (R&D) associated with the valorization of genetic resources?	The Council for Scientific and Industrial Research (CSIR) has a Unit (Biosciences Unit) which is involved in the R&D of genetic resources. The Agricultural Research Council (ARC), has a program aimed at the cultivation, propagation and protection of genetic resources. Similarly, several Universities within SA have programs aimed at R&D in the genetic resources field
9) Is there capacity for the identification of commercial value of products derived from genetic resources, and to develop, update and maintain databases on these products and genetic resources?	The National Recordal System (NRS) was developed to assist communities, guilds and other traditional knowledge (TK) holders to record their knowledge holdings as to provide a resource to assist with future economic benefits and social good, based on TK. This NRS was initiated in 2013, but as yet has not been implemented fully.
Capacity needs and priorities of indigenous and local communities and other relevant stakeholders
10) Do Indigenous and Local Communities (ILCOs) have the information to understand the challenges and opportunities that the Nagoya Protocol has to offer and to actively engage in ABS agreements?	Not specifically in a general sense, however on a project scale through public participation or the prior informed consent process this should be communicated to ILCO's
11) Are there clear procedures or model contractual clauses to obtain Prior Informed Consent (PIC) for the utilization of genetic resources and associated Traditional Knowledge (TK)?	Yes the procedures for PIC is in place in the BABS regulations guidelines in chapter 3.7.
12) Are there minimum requirements for Mutually Agreed Terms (MAT) to secure fair and equitable sharing of benefits arising from the utilization of TK associated with genetic resources?	Section 84 (Material Transfer Agreements) of the NEMBA (Act 2004) provides guidance.
13) Are there model contractual clauses for benefit-sharing arising from the utilization of TK associated with genetic resources?	Several contractual causes have been developed.

Notes: See otherwise ANNEX D. GEF Tracking Tool (s) at baseline.

Box . ABS Procedures, Checkpoints and Flowchart ACCESS AND BENEFIT-SHARING PROCESS FLOWCHART [2] Indigenous biological resources (IBRs) can be provided by land owners and owners of IBRs, companies and communities. TK can be provided only by indigenous communities and individuals. Providers of IBRs would need to enter into an MTA and a BSA and providers of TK would need to enter into a BSA. Annexure 7 of the BABS Regulations provides a pro-forma MTA that must be completed and signed by the provider and the user of the IBR. Annexure 8 of the BABS Regulations provides a pro-forma BSA that must be completed and signed by the provider and user of the TK. MTA = material transfer agreement BSA = benefit-sharing agreement Particulars of bioprospecting permit applications [1]: To be eligible for a permit for bioprospecting derived from traditional knowledge, or from the traditional use of a biological resource, the applicant must disclose to stakeholders the full nature of the bioprospecting project. The applicant must also gain the prior informed consent of the Indigenous community providing access, and have both a mutual transfer agreement and a benefit-sharing agreement in place. The mutual transfer agreement must identify the particulars of the provider and the recipients of the biological resources, along with the type, area of source, quantity, purpose and present potential uses of the biological resource. Similarly, the benefit sharing agreement must specify the characteristics of the indigenous biological resources subject to the agreement, the parties to the agreement, the scope of the use of the biological resources, regular review intervals, and the manner and extent to which communities will share in the royalties derived from bioprospecting. Both respective agreements must be in a standard form, and are of no effect without Ministerial approval. Approval is granted when the Minister is satisfied there has been adequate disclosure to affected stakeholders, and that the benefit-sharing agreement is equitable. The Minister may also seek technical advice on the agreement, or interfere with the contractual terms to ensure that the equitable sharing of benefits occurs. Lastly, the holder of the permit is liable for all mitigation costs to remedy any adverse impact on the environment deriving from the bioprospecting project.

[1] Quoted from: Medaglia et al (2014): Overview of national and regional measures on access and benefit sharing challenges and opportunities in implementing the Nagoya Protocol. Third Edition CISDL Biodiversity & Biosafety Law Research Programme, 25 June 2014. [2] Source: DEA (2012): South Africa’s Bioprospecting, Access and Benefit-Sharing Regulatory Framework: Guidelines for Providers, Users and Regulators. Prepared for the Department of Environmental Affairs by: The Environmental Evaluation Unit, University of Cape Town and Natural Justice.

Box . From CBD’s ABS Clearing House Mechanism (accessed on 17 Jul 2017)