ENVIRONMENT-BRAZIL: Activists Bash Decree on Genetic Resources

By Mario Osava Reprint | | Print |

Mario Osava

RIO DE JANEIRO, Jul 5 2000 (IPS) - Environmentalists in Brazil are protesting that a decree signed by President Fernando Henrique Cardoso on genetic resources violates the constitution and the rights of indigenous communities by legalising “bio-piracy”.

Cardoso regulated access to Brazil’s genetic wealth by means of a “provisional measure,” a decree that immediately goes into effect, with the strength of a law, for 30 days, and which can be renewed monthly until Congress enacts it as a law or votes it down.

The provisional measure signed by Cardoso Friday endows an inter-ministerial council with the authority to issue licenses for the use of natural resources on land inhabited by indigenous communities, whenever it rules that the use of such resources would be of “outstanding public interest.”

The provisional measure came in response to a scandal triggered by a contract with the Swiss firm Novartis Pharma, signed May 29 by Bioamazonia, an organisation created by the government itself in association with scientific and business institutions to promote “the sustainable use of the biodiversity of Amazonia.”

According to the terms of the contract, the Swiss pharmaceutical giant will invest some four million dollars over the space of three years for the study of up to 10,000 microorganisms to develop pharmaceutical products outside Brazil. The country is to receive a proportion of the earnings generated by the patents taken out on the new products.

Environment minister José Sarney Filho criticised the agreement, and alleged that Bioamazonia had overreached itself.

In the face of the outcry by environmentalists and scientists, the Bioamazonia council of administration set up a commission that was given a 30-day deadline to propose “adjustments” to the accord.

Nevertheless, Bioamazonia claimed that it had not violated any law or norm, and pointed out that one of the contract’s clauses stipulated that its council of administration could evaluate, modify or revoke the contract at any time.

The government issued the provisional measure on the argument that the incident involving the Novartis contract had highlighted a “legal vacuum” in the regulations on licenses for the use of genetic resources.

The question of the use of genetic resources has been under debate in Congress for five years now, and arose as an issue of pressing public concern in Brazil in 1992, when the Convention on Biodiversity was approved at the Earth Summit in Rio de Janeiro.

André Lima, an expert in environmental law and a legal adviser to the non-governmental Socioenvironmental Institute, said the provisional measure failed to respect the constitutional requirement that indigenous communities must consent to the use of natural resources on the land they inhabit.

Lima took issue with the fact that the interministerial council — which can issues licenses, and which has powers to control and regulate the use of genetic resources — is comprised solely of representatives of the executive branch.

He argued that the government had failed to respect principles of public administration that require the participation of representatives of civil society, which were followed when national councils on the environment, health, public security and the rights of women or children, for example, have been set up.

In this case, the scientific community and other parties interested in the question should have been invited to take part, the lawyer maintained.

Another problem is that the measure legitimates prior activity by those who have exploited the traditional knowledge of indigenous communities regarding plants and other organisms, and that it allows such activity to continue — in other words, by “granting an amnesty for past and future bio-piracy,” according to Lima.

Furthermore, the decree runs counter to a bill which has already made it through the Senate, which recognises the rights of local communities with respect to the use of their traditional knowledge in the development of commercial pharmaceutical products, cosmetics or other products, he pointed out.

Congress is currently studying three bills on the question of genetic resources, including the one already approved by the Senate, and another which was introduced by the executive branch.

In that context, the use of a provisional measure is “absolutely anti-democratic,” stated 16 non-governmental organisations (NGOs) in a joint declaration.

The NGOs plan to put up a fight to keep the 30-day provisional measure from being renewed, and to expedite parliamentary approval of a satisfactory law, said Lima.

The “precarious” nature of the measure adopted by Cardoso, which can be modified or voted down by Congress, gives rise to instability and insecurity, because the decree does not even offer guarantees to private firms granted licenses for exploiting genetic resources, he added.

Senator Marina Silva of the opposition Workers Party, who sponsored the bill on genetic resources approved by the Senate, charged that the government committed an act of “legislative piracy” by usurping functions of Congress and bypassing a debate that has been going on in parliament for several years.

The episode could strengthen a movement of parliamentarians who consider excessive the executive power’s use of provisional measures, which according to the constitution are to be used only to resolve urgent matters.