Biological Diversity (Amendment) Act, 2023: Balancing innovation, conservation and community rights

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Biodiversity is a growing business globally. Whether it is the role biodiversity plays in regulating natural systems that mitigate climate and ecological risks to businesses, the direct business opportunity – estimated at $3.6 trillion by building regenerative food, land and ocean use systems – or the emerging market in biodiversity credits, biodiversity is slowly gaining recognition for the value it delivers to the global economy. In India, the market for ethnobotanical medicine was estimated at $18.1 billion in 2020.

In December 2022, COP15, the United Nations Biodiversity Conference was held in Kunming and Montreal, where countries all over the world adopted the Kunming-Montreal framework to enhance biodiversity protection and conservation. The adopted calls on the world to protect 30 per cent of all ecosystems by 2030, to protect biodiversity and genetic diversity and ensure fair and equitable sharing of benefits of traditional knowledge with the local and indigenous communities that steward this knowledge.

The 2023 amendments to India’s Biological Diversity Act of 2002 are an update on the original 2002 Act, but has caused a vigorous debate concerning biodiversity protection and India’s responsibilities as a signatory to the Kunming-Montreal framework between various stakeholders.

Amendments under scrutiny

One of the areas that has become a key point of contestation has been the potential impacts of the changes on benefit-sharing mechanisms, the rights of indigenous peoples and streamlining to facilitate ease of doing business. Under the original 2002 Act, approvals from the National Biodiversity Authority (NBA) were required before applying for intellectual property rights (IPR) related to biological resources.

The 2023 amendments have eased this requirement, no longer mandating approval from the National Biodiversity Authority for IPR, but only requiring them to be registered with the authority before granting approvals – raising concerns about possible resource overexploitation.

The exemption of codified traditional knowledge from the benefit-sharing mechanism and stringent regulatory oversight has also raised further concerns. Critics argue that this change undermines the principle of fair and equitable benefit-sharing, which is central to both the original Act and international agreements like the Nagoya Protocol.

By allowing AYUSH practitioners and related industries to access biological resources without prior approval, the amendments potentially open the door to commercial exploitation without adequate compensation to local communities that hold traditional knowledge, or safeguards to minimize damage to ecosystems.

Decriminalisation of offences under the Act presents another major change. Previously, violations could result in imprisonment and fines – the amendments now replace imprisonment with civil penalties ranging from ₹100,000 to ₹5 million, with provisions for higher penalties in cases of ongoing violations. This shift reflects a move towards civil adjudication rather than criminal prosecution, with penalties to be determined by appointed adjudicating officers. However, there is concern that this may weaken enforcement, as civil penalties might be seen as less deterrent compared to criminal sanctions.

The changes have also drawn criticism from states like Uttarakhand, Assam, and Bihar, that have expressed concerns that the amendments could lead to false claims about the cultivation of bio-resources and potential manipulation by businesses. They argue that without stringent oversight, there could be widespread misuse and exploitation of local resources, adversely affecting both biodiversity and the livelihoods of local communities dependent on these resources. In the North

East, where traditional knowledge about medicinal plants and ecological management is profound, this change could exacerbate existing socio-economic disparities and contribute to cultural erosion. This could undermine the rights and economic interests of these communities, which rely on their traditional knowledge for both cultural identity and livelihood.

Proponents of the amendments, however, argue that the changes are necessary to simplify regulatory processes and encourage investment in biodiversity-based industries. They claim that the amendments will reduce bureaucratic red tape, promote innovation, and support the growth of sectors like pharma and traditional medicine.

Strengthening monitoring systems

On the positive side, the amendments also strengthen the role of Biodiversity Management Committees (BMCs) by clarifying their functions and mandating their establishment in rural and urban areas. For the North East, this could mean better local governance and more robust community involvement in biodiversity conservation. Effective BMCs can ensure that local knowledge and priorities are integrated into conservation strategies, potentially mitigating some of the negative impacts of the regulatory changes.

However, the success of this approach depends heavily on the capacity and empowerment of these committees to enforce regulations and manage resources sustainably. The new provisions also place a stronger emphasis on monitoring biological resources derived from foreign countries, ensuring compliance with international agreements like the Nagoya Protocol.

The implications of these changes for India’s biodiversity are multifaceted. On one hand, easing regulatory burdens and decriminalising offences could foster greater industrial and research activities involving biological resources, potentially boosting economic growth and innovation in pharmaceuticals and traditional medicine sectors. However, this must be balanced against the risks of over-exploitation and insufficient benefit-sharing with rural and indigenous communities, who are often the stewards of these resources.

Ensuring communities receive fair benefits for their rich knowledge of biodiversity, particularly the uses of bioresources for medical purposes, would enable communities in the region to both preserve biodiversity and to drive their development goals. In a region as vulnerable as the North East, where enforcement of environmental laws is already challenging due to its rugged terrain and remote areas, strong monitoring protections will be needed to prevent biopiracy, resource exploitation and damage to ecosystems.

The 2023 amendments present a mixed bag for bio-culturally diverse regions like the North East. While the streamlined processes and enhanced roles for local management could lead to better governance, the relaxation of regulatory controls and decriminalisation of offences pose significant risks.

It is crucial that these regulatory changes are implemented with strong safeguards, robust monitoring, and active involvement of local communities to ensure that biodiversity conservation and sustainable development go hand in hand. Balancing economic development with conservation and equitable benefit-sharing will be essential to safeguard India’s rich biological heritage for future generation.

The author is Ranjit Barthakur, Founder, Balipara Foundation