Episode 5: Marine Genetic Resources

Acknowledgement to country

This podcast was produced on the lands of the Dharawal, Yuin and Wadi Wadi Peoples of the five islands dreaming. On the lands and waters that we live, study and work, we acknowledge and pay our respects to the traditional custodians and cultural knowledge holders of these lands and seas.

Teaser

Fran Humphries: “Currently, there are limited capacities for countries to go out to the High Seas. It’s very expensive process to go out there. This treaty promotes equity by leveling the playing field for access to information as well as access to the physical materials. The principle of equity includes not just equitable sharing between the current countries and current generations, but it also envisages equity between current and future generations.”

Jennifer: Hello and Welcome back to NEGOTIATING THE OCEAN – a Ocean Equity podcast by the Australian National Centre for Ocean Resources and Security – ANCORS, at the University of Wollongong.  I’m Jennifer Macey.

Ina: And I am Ina Tessnow-von Wysocki

Marine Genetic Resources can be found in all parts of the ocean. We don’t yet know what the deep sea holds. But what is clear is that the benefits of those marine genetic resources should be shared fairly and equitably – no matter who finds them,  who collects them or who develops products from them. This concept of benefit sharing is directly linked to advancing ocean equity.

Montage (MGRs)

“Today we’re actually going to have an opportunity to discuss the section of this treaty which deals with marine genetic resources.”

“Science is such a critical piece of this puzzle.”

“Deep ocean habitats are very different and they’re home to extraordinary species we couldn’t have even imagined 50 years ago!”

“The idea is, that you take a deep-sea resource, it could be a whole organism, such as a sponge or something like that, or it could be a sediment sample, from which you might grow a bacterium, and from those biological samples you might obtain DNA and sequence it or you might obtain a direct chemical extract.”

Jennifer: This is our last episode of the Mini-Series on stakeholders who attend the meetings of the agreement on biodiversity beyond national jurisdiction – or BBNJ. Today we meet a scientist who is an expert on marine genetic resources and benefit sharing.

Ina: And this part of the agreement is one of the most technical and complex that still need to be resolved. So, to help us unpack these issues, I spoke to Associate Professor, Fran Humphries from Griffith University, here in Australia.

Fran Humphries: So, my name is Fran Humphries. I’m an Associate professor at Griffith University. I’ve published widely on access and benefit sharing around biological resource governance, and I’ve also done many consultancies on how to operationalize various frameworks in terms of Nagoya protocol as well as BBNJ agreement. So I’ve had been fortunate to have the opportunity to be on one of the NGO delegations throughout the IGCs, and that was on the International Council of Environmental Law.

Ina: And could you explain to our audience what marine genetic resources are in your own words?

Fran Humphries: So there’s a technical legal definition in the treaty, but in my own words, marine genetic resources are the building blocks of life. So they come from biological resources. They can be big resources, they could be tiny resources like marine microorganisms. So, the value of those genetic those biological resources is the genetic information that they contain. So the treaty regulates or governs the physical samples the biological resources, as well as the sequence information that it contains.

Ina: So why is this new treaty on marine biodiversity so important?

Fran Humphries: Well, I think it’s important for several reasons. The first is to address gaps in biodiversity governance. So previously, we only had rules that focus on biodiversity within national jurisdiction. Another reason is addressing gaps in global equity. So the marine genetic resource component of the treaty, which is the area that I focus on more has a role to play in filling that gap. And there’s also gaps in in the UN Convention on the Law of the Sea with relation to the existing rules for marine scientific research and technology transfer. So this treaty fills some of those gaps.

Ina: And how are these marine genetic resources relevant when it comes to ocean equity?

Fran Humphries: So as I was saying, the building blocks of life. They’re essential for a range of research, whether it’s commercial research or non-commercial research. It’s very expensive to go out to the high seas to collect biological resources, samples. So, the treaty tries to enable the sharing of information, as well as benefits from those collection activities and the sequences that are generated from them. It contributes to ocean equity, because the treaty itself has a notification mechanism which shares information about the collection and the location of the resources for other people to use them in their own research and development processes. So, it reduces duplication of effort and in sharing the location of samples, the requirement is to have them in open, openly accessible databases and repositories, and that means that other people, yes, can use them for their own research. There is also another component that addresses equity for traditional knowledge holders. So the Treaty also has a framework for ensuring that their prior informed consent in mutually agreed terms is entered into before someone uses traditional knowledge associated with MGR in ABNJ. This treaty promotes equity by leveling the playing field for access to information as well as access to the physical materials that are collected from areas beyond national jurisdiction.

Ina: And benefits from areas beyond national jurisdiction are meant to be shared fairly and equitably. How does the new treaty envision this?

Fran Humphries: Well, it’s actually the first time that a treaty has embedded, well, articulated the principle of fair and equitable benefit sharing in the treaty text. It had also combined it with the principle of equity. So the principle of equity includes not just equitable sharing between current countries and current generations, but it also envisages equity between current and future generations. So, by embedding that principle, it assists with decision-making processes that ensure that benefits not only benefit current but also future generations. Now. It does this in a concrete way, through a framework of notification and benefit sharing. There is also a monitoring or transparency mechanism.

Jennifer: Again, Ina, this is all super technical!

Ina: Yes, and that’s also what needs to be figured out now at these Preparatory Commission Meetings – or PrepComs.

Jennifer: Ok, so as I understand it what’s new with this Ocean Treaty is that you can no longer go out to the High Seas to collect a resource without telling anyone.

Ina: That’s exactly right! So, now the information about the collection of marine resources has to be shared. And that includes for example the purpose of the collection, the methods, and also the person in charge- all these details will now have to be uploaded to a centralised platform: the Clearing-House Mechanism. Fran Humphries explains how this will work in practice.

Fran Humphries: Something to keep in mind is that it’s not an access authorization procedure. It’s very much an information sharing procedure. So the notification mechanism has a couple of notification points. There’s a point at the pre-collection notification, so before the resources are collected, after the resources are collected there’s also another notification, but from the pre-collection notification when it’s sent to the clearing-house mechanism the there’s an opportunity for other states and other countries to see that research is being conducted. So, there’s that first opportunity to join in research activities from countries that can’t necessarily afford to go out there on their own. There’s also, once the collection notification is made to the clearing-house mechanism, it automatically issues a BBNJ identifier, which is just a digital tag that connects to the whole of the collection. But it means, then, once you go back to shore, identify the marine genetic resources that you have, those can be identified as having come from areas beyond national jurisdiction. And the next notification then, which is the post-collection notification, lets the system know where those marine genetic resources and sequences – that have been uploaded into databases – where they’re located, so people can find out where they are. There’s another obligation in the treaty to ensure that when someone starts to conduct what’s defined as utilization in the treaty, which is something beyond collection and sampling. They have an obligation to put samples in publicly accessible databases and repositories, again, for the ability for other people to benefit from the use of those in their own research. There’s also a third collection notification opportunity, which is the utilization notification. And that provides sort of information with respect to the publicly available results of the research, so publications, patents and information about products that have been generated. And that information then is useful for other researchers to build on that, build on the body of knowledge with their own research, so embedded in throughout the whole of the notification process, at different points of benefits that can be shared.

Ina: It’s still unknown what could be potentially discovered in the deep-sea…

Montage

“A lot of undiscovered species for the deep-sea..”

“..well that’s 90% undescribed”

“And its important to bring professionals from different backgrounds, such as lawyers, biologists, oceanographers, social scientists, and engage them in an ongoing dialogue.”

“..to ensure that policy-makers have access to the best available scientific knowledge about the deep sea.”

Ina: Fran Humphries highlights that this ocean agreement makes sure that both the non-monetary benefits, such as research- and the monetary benefits are shared fairly and equitably.

Fran Humphries: There is a dedicated monetary benefit sharing provision in the treaty that makes a distinction between non-monetary and monetary benefits. So, the non-monetary benefits are some of the things I just talked about, access to samples and information, but it’s also capacity building and other transfer of marine technology type benefits. There is a monetary benefit scheme that requires Parties to provide direct payments to a fund, a special fund, for then distribution for purposes, for example, for conservation and sustainable use purposes. But the Conference of the Parties is yet to decide what the modalities will be for a monetary benefit sharing scheme from utilization activities. That’s something that’s yet to be decided.

Ina: Interesting. So, what are the next steps? So what are still unresolved issues that will need to be tackled by the PrepCom or the COPs?

Fran Humphries: There are quite a few unanswered questions, because to agree to the framework, there needed to be some compromise, but also some really tricky questions to be addressed down the track, once Parties or the prospective Parties, could consult with research and development communities, because it’s very important to make sure that any framework and procedures that go into the mechanism are practical and that they don’t overly burden research and development, which is the whole purpose and the generation of benefits from research and development. So at the international level, there’s several, you know, key policy questions throughout the notification and benefit sharing and traditional knowledge mechanisms that I just spoke about. For example, through in the notification mechanism, it’s important at the national level to really get clarity around whether countries can require their nationals to directly provide notifications to the clearing-house mechanism, or whether they, the Parties, would collect the information themselves and then send that information on to the clearing house mechanism. Because if there is the availability for both options, the clearing-house mechanism needs to be designed in a way that can cope with both types of information. And the most important thing for the notification and the BBNJ identifier is to make sure that all of the information is standardized, because it needs to be able to communicate with other databases and repositories and the existing research and development communities protocols.

Another point for the notifications, there’s various areas of clarification for triggering the pre collection notification. There needs to be decision, is it triggered by a whole cruise that goes out to sea, or is it every individual project on board within that cruise? There’s big implications for either, but there needs to be that sort of clarity from the international level. Also triggers around utilization. So whether it – the notification – is triggered by every use which would be impractical and defeat the purpose of the standardized batch identifier, or whether it’s a new insight so something more than identification, which could fall within the sampling activities, which would be the part of the collection notification, or whether it’s a publicly available results of research, and that’s what triggers the notification, so that that’s more practical option. But all of those questions need to be considered at the international level to give guidance to countries about how they can implement measures to support the their own people, to get information to the clearing-house mechanism. There’s also many questions about how the BBNJ identifier could work in practice. That’s one of the most urgent, because as soon as the as soon as the treaty enters into force, the collection notifications will could potentially begin so they already need the infrastructure in place to manage that, as well as the identifier system that needs lots of data managers to to provide technical information about how that could work. Data management also needs a specific set of skills to set up the BBNJ identifier system, and that needs to obviously be set up well in advance of the treaty coming into force.

For the benefit sharing, there will be many unanswered questions. For example, what we talked about, the monetary benefit sharing system still needs to be worked out, but there’s also many questions around how benefits would be allocated and distributed, for example.

For the traditional knowledge obligations, there’s many policy questions in terms of figuring out how it relates to the notification and benefit sharing mechanism, because it’s a very different format, but also how it relates to existing prior, informed consent and mutually agreed term systems within national jurisdiction.

Ina: Many unanswered questions for the Prep Com and the COPs to come. Are there any best-practice examples, maybe from other agreements on this topic?

Fran Humphries: So there’s Convention on Biological Diversity and the Nagoya Protocol take a different approach. They’ve got that prior, informed consent, mutually agreed terms, approach, which is an authorisation process and not a notification process. The lessons learned from there is to make sure that the mechanism for monitoring isn’t too onerous and too complicated to stop the free flow of information because the BBNJ Treaty was designed as an a light touch system with a free flow of information, so trying to duplicate the Nagoya protocol’s systems and procedures, for example, would cause information blockages, and it doesn’t work in the in the context of areas beyond national jurisdiction. One mechanism that is quite advanced in their thinking in terms of how to manage digital sequence information and benefits from it, is the digital sequence information multilateral mechanism under the global biodiversity framework. So,their discussions are ongoing as to a more practical approach for getting benefits from DSI, and one of the key points for that is that track and trace is not a practical approach to monitoring. And also to to basically get benefits back to the system. So there is some good lessons learned from those areas. The Plant Treaty, which is another access and benefit sharing framework, has some great lessons for how to manage funds and direct contributions to the funds to increase the pot of money. They’ve also got a lot of lessons about how to do distributions from that fund on the basis of need and the basis of certain criteria.

Ina: And what would you say, what will be the most important to make implementation of BBNJ a success?

Fran Humphries: Oh, that’s a great question! And I think that from the perspective of states trying to figure out how to implement it, is to think about, firstly, that it the mechanism -the framework itself – is very much a light-touch framework, it doesn’t have any authorization components, so it shouldn’t be over-engineered at the state level, because the free flow of information is the the highest priority for the benefits that come from this BBNJ agreement. A system at the national level also needs to be flexible to be able to cope with changes in the international policy that when the COP decides these questions on what triggers notification and how benefits, monetary benefit sharing, might be dealt with down the track. It also needs to be flexible enough to deal with changes in access and benefit sharing fora that can impact on this space, like the digital sequence information multilateral system that I talked about before. But it also needs to be flexible enough to deal with changes in technologies, because there’s a lot of automation now and new technologies that could stretch the definitions that are existing in the treaty. The third key point for implementation is to make sure that the system is feasible, so it needs to meet the practical realities of research and development.

My hopes are to continue the spirit of cooperation and compromise, because there will be some fairly tricky questions relating to the how to operationalize the framework for marine genetic resources, and the cooperation was inspiring during the IGCs, and hopefully that will continue on through the PrepCom.

Jennifer: A big thank you to  Associate Professor Fran Humphries from Griffith University! We’ll share links to some of her work on marine genetic resources and benefit sharing in our podcast show notes.

Ina: And we’ll also include some background information, published by our researchers here at ANCORS, and links to the official UN documents that will be discussed during the PrepCom.

And next time on Negotiating the Ocean, we’ll be joined by our co-host Bianca Haas, who will guide us through the complex web of tuna fisheries.

Jennifer: We’d love to hear from you, so send any comments or feedback to our email address: inatvw@uow.edu.au

Ina: This podcast was edited by Emily Perkins and communication is by Sunnefa Yeatman.

Jennifer: Thank you also to ANCORS and the Nippon Foundation for their support in the making of this podcast.

Ina: I’m Ina Tessnow-von Wysocki.

Jennifer: I’m Jennifer Macey. Thanks for listening!

Ina: “Sea” you next time!