US embassy cable - 05PRETORIA169

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