This report is based upon research conducted in Brazil from June to August 1999. This project was realized thanks to the generous financial support of the Texas Fund for Training Foreign Policy Professionals and the Ford Foundation.

A number of people were particularly helpful in the preparation of this report. I would like to thank the following individuals for their immeasurable help: Cristina Azevedo, Charles Clement, Nilo Melo Diniz, David Hathaway and Carlos Henrique Schmidt.

I would also like to add a special acknowledgement to Antonio Herman V. Benjamin, friend and mentor, who has been exceedingly gracious in his support during the preparation and realization of this project.

Questions or comments regarding any of the material contained within this report may be addressed to the author at the following address:

Jordan E. Erdos
4814 Avenue H
Austin, Texas 78751
U.S.A.
(512) 420-0821
spongo@io.com

The Convention on Biological Diversity (CBD), signed in 1992 at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, requires contracting parties to approve legislation that will advance national biodiversity protection. Among the challenges set forth in the CBD is the call for effective regulation of access to genetic resources (AGR). This report examines the efforts being made by Brazil to address AGR issues.

Genetic resource access does not constitute a single policy heading, but rather, requires efforts in three crucial policy areas: the environment, human rights and intellectual property rights (IPR). This tripartite foundation for AGR regulation consists of pre-existing laws and regulations at the national, as well as international, level. Failure to adequately balance the demands of the three policy areas could result in AGR legislation that falls short of achieving its aims by catering to a single constituency.

At the federal level in Brazil, Congress is working with three bills addressing the regulation of AGR. Two of the bills — N^o 306/95, introduced by Senator Marina Silva and N^o 4579/98, introduced as companion legislation by Deputy Jacques Wagner — have been crafted with public input and participation. The third bill, introduced by the Executive power, was formulated in response to Senator Marina’s bill by agency bureaucrats meeting behind closed doors.

Because of the different circumstances from which these bills emerged, each addresses the issue of AGR in a manner reflective of its origin. Particularly distinct is the way that the bills propose to authorize potential commercial research. The Marina and Jacques Wagner bills call for the creation of a Genetic Resource Commission comprised of representatives from the numerous stakeholders involved, such as the scientific community, local communities and indigenous populations, non-governmental organizations (NGOs), in addition to federal, state and local government representatives. The Executive bill aims for a less bureaucratic process, allowing the Executive power to assign a deliberative council and a technical assessment committee.

The bills also differ in their definitions of key terms relating to AGR, such as "genetic resource," which the Marina and Jacques Wagner bills differentiate from "biological resource" by vesting the former definition with a clear economic nature. The Executive bill, on the other hand, prefers the term "genetic patrimony," reinforcing the federal ownership of the resources. This ownership is clear in the legal definition of genetic patrimony, which the Executive bill considers as goods belonging to the Union. The Marina bill establishes genetic resources as "public goods of the Union for special use," and the Jacques Wagner bill defines them as "goods in the public interest."

While reconciliation of the differences between these bills has kept them frozen in Congress, a number of states have begun to pass their own AGR legislation. The Amazon states of Acre and Amapá have both approved statewide AGR legislation. In the case of Acre, the legislation was passed in response to a particular case of biopiracy involving an NGO that was illegally cataloguing native use of medicinal plants. The Amapá legislation arose out of a larger program aimed at sustainable development that includes a police force focused exclusively on environmental protection and education (the Environmental Battalion). While there is a question of jurisdiction regarding genetic resources and AGR, there has been no federal challenge to the state laws.

The success of any federal legislation hinges upon addressing a variety of concerns. One concern, often cited by critics of the Marina bill, is the fear of bureaucracy. Opponents argue that research in Brazil has declined since the introduction of Decree 98.830, which requires foreign researchers to fill out extensive paperwork and await its processing through the bureaucratic structure. At present, there is no proof that this is the case. This report recommends that a study of Decree 98.830 be conducted to determine exactly what its effect has been.

Another concern addresses the question of representation and participation. The Executive bill, drafted behind closed doors with no public participation, is clearly not interested in incorporating stakeholder interests and concerns. The Marina and Jacques Wagner bills, while drafted with public participation, can still learn from the experiences of Acre and Amapá and ensure that participatory meetings truly engage and involve stakeholders and do not just call for the participation of local representatives as a form of political tokenism. It is particularly fundamental for policymakers to communicate the issue in a manner that can be understood by traditional populations affected by the regulation of AGR.

Perhaps the most difficult issue that needs to be addressed is that of choosing representation to participate in the drafting of legislation and, more importantly, to determine who should form the "supercommittees" that would decide whether or not to grant AGR. The form of leadership across indigenous communities is not uniform, and too often policymakers seek to apply Western models of leadership to the more complex indigenous structure. During the past decade, indigenous communities have formed a number of political organizations, making representation decisions less complicated. Still, there is difficulty in determining whether the organizations truly represent the majority, and there is often, as with all political organizations, internal conflict that could obfuscate the issue. The report examines two successful, regional organizations: the Coordinating Body of Indigenous Organization of the Brazilian Amazon (COIAB) and the Union of United Indigenous Nations of Acre and the Southern Amazon (UNI/AC).

Policymakers need to ensure that their message is reaching the appropriate parties. States must build partnerships with stakeholders and disseminate accurate information regarding access to genetic resources. Potential researchers must understand what is permitted under the law. Local communities must be able to identify the threat of biopiracy and know how to respond through legal channels. On the federal level, it is time for Brazilian policymakers to recognize the fear of biopiracy in the Amazon.

Implementation and enforcement of any resulting AGR legislation will depend upon the involvement of various actors and stakeholders. Education is fundamental. It would be worthwhile for policymakers to consider some form of briefing/debriefing strategy for researchers entering and departing the country, guaranteeing that they are aware of the law and are operating within a legal framework. Even before this occurs, Brazilian embassies and consulates should be able to red flag research proposals that could lead to biopiracy. Likewise, public information campaigns aimed at the foreign scientific community would help clear misconceptions.

Policymakers must also determine the role of existing agencies in enforcement and encourage communication between agencies at all levels, from municipality to state to federal government. The primary federal environmental regulatory agency, IBAMA, must coordinate with state agencies to focus upon and respond to suspected illegal actions.

Finally, the federal government should recognize the network of NGOs and traditional organizations working in the Amazon region. No policy or program will ever be successful without the full knowledge and participation of the local communities affected. It is time for the government to communicate and work with grassroots organizations, sharing resources, materials and tools as needed.

The successful regulation of access to genetic resources requires a concerted effort by all parties involved to work together in the common interest of protecting the nation’s rich biological and cultural diversity. Failure to act will result in the depletion of natural resources and the erosion of knowledge acquired over generations. No one will benefit once there is no longer an incentive to explore the vast, uncatalogued biodiversity and the traditional knowledge relating to that biodiversity.

Since adopting the Convention on Biological Diversity (CBD), the binding international agreement that emerged from the United Nations conference in Rio de Janeiro in 1992, signatory nations have begun to approach the difficult task of passing national legislation in conformity with the articles of the Convention. Perhaps the most challenging task that faces the national governments is preparing effective legislation regulating access to genetic resources (AGR).

This report focuses upon the efforts of one country, Brazil, to approve such legislation, while satisfying the many stakeholders involved in the process. In addition, it looks at the difficulties of implementing AGR legislation, and how Brazil is meeting these challenges.

No country can claim to possess as great a biological diversity as that found in Brazil. Megadiversity is encountered throughout the many regions of the country; regions with fragile ecosystems such as the Amazon rainforest, the Pantanal, the Cerrado and the Atlantic coastal rainforest. Brazil, the fifth largest country in the world, contains 22% of all known plant species in the world.[1] In addition to wild species, Brazil is a Vavilov center for a number of important crops, including the Brazil nut, cacao, pineapple and passion fruit.[2]

Brazil also has a wealth of cultural diversity, with 206 groups of indigenous peoples.[3] In the Brazilian Amazon alone there are more than 2,500 known species of trees, as well as the vast majority of the country’s indigenous population.[4] This diversity makes the Amazon a particularly ideal location for biological prospecting, or bioprospecting — the practice of exploring potential commercial uses of natural resources and related traditional knowledge regarding use of these resources. Many pharmaceutical companies engage in bioprospecting, acquiring information about native plant use and screening those plants for active chemicals that could prove useful in the creation of new drugs. Critics of this practice refer to it as biopiracy, because often the knowledge and resources are appropriated with few benefits returned to those to whom the knowledge and resources belong.

It was in the Amazon that one of the world’s first acts of biopiracy occurred — the smuggling of rubber tree plant seeds to the Kew Royal Gardens in London. This illicit act lead to the British establishment of rubber plantations in Southeast Asia and resulted in the devastation of the booming Amazon rubber economy and a lasting xenophobia in the Amazon region.

With the ratification of the CBD, Brazil has begun preparation for regulating access to its "cultural patrimony" — the valuable genetic resources contained within the estimated 50,000 to 56,000 described species of higher plants found within the country.[5]

An article in the weekly newsmagazine Veja estimates that countries containing a high level of biodiversity lose a sum value of around $5.4 billion per year in royalties.[6] According to current Minister of the Environment José Sarney Filho, some 20,000 natural extracts are smuggled from the country illegally each year, providing genetic information for potential pharmaceuticals or other commercial products from which, due to the illegal nature of their retrieval, Brazil would receive no royalties.[7]

During the past few years, there have been a number of controversial incidences involving unregulated access. A Belgian man was imprisoned in 1997, after attempting to leave the country with six boxes containing more than 200 butterflies and beetles. An English chemist who spent 17 years living among the Waipaxana in the state of Roraima surreptitiously registered with the European Patent Office two medical compounds taken from plants used in the tribal pharmacopoeia.[8]

With each illicit act of biopiracy, potential benefits are lost; benefits not only to the stakeholders, but to the environment itself. By regulating how contracts between parties are written, and creating a structure for approving or rejecting potential bioprospecting agreements, the Brazilian government could determine what it should receive for allowing access to its cultural patrimony. Such agreements allow for an opportunity to promote the preservation of biodiversity and to learn more about the plants before they have been wiped out by unsustainable development and forest fires.

The issue of access to genetic resources is one not easily characterized by a single policy heading. Because of the numerous stakeholders involved — from pharmaceutical companies to university researchers to national governments to traditional populations — as well as the multiple levels of contract negotiations between stakeholders, AGR regulation must incorporate three crucial policy areas.

First, effective AGR policy must address environmental concerns, such as biodiversity protection and sustainable development. An ideal bioprospecting contract will include important provisions for achieving these aims, such as details of technology transfer, as well as provide an incentive to preserve the area in question.

Additionally, AGR policy must take into account human rights concerns, ensuring that traditional populations enter into contracts with prior informed consent (PIC) and receive an appropriate compensation for their participation. The primary right of the local communities is the right to decline research perceived as deleterious.

Finally, AGR policy must address intellectual property rights (IPR). Just who should own the right to charge for knowledge leading to a commercial product? Who should be the recipient or recipients of patent ownership or plant breeder’s rights? Should plants even be patentable? These and many other difficult questions surround AGR and the nebulous policy area in which it exists.

In each of these policy areas, there is already existing legislation and administrative action, both at the national and international levels, that will guide how future AGR regulation is determined. Each policy area, additionally, is presided over by specific government agencies that are sometimes at odds with each other.

In 1948, the United Nations adopted the Universal Declaration of Human Rights (UDHR), declaring all people on Earth "born free and equal in dignity and rights."[9] Within the thirty articles of the Declaration addressing inalienable human rights are: the right to a nationality, the right to property, the right to freedom of religious beliefs, and the right to the "protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."[10] There is, in fact, a specific Draft Declaration on the Rights of Indigenous Peoples, currently under debate in the United Nations, which would extend many of these rights, including specific rights regarding ownership, control and protection of indigenous cultural and intellectual property.[11]

In addition to being the first international agreement to define, conceptually, what constitutes an indigenous peoples, the International Labor Organization Convention 169 (ILO 169) recognizes the "aspirations of these peoples to exercise control over their own institutions, ways of life and economic development ..."[12]

Articles of ILO 169 include the right of indigenous peoples to the ownership and possession of lands they have traditionally occupied and the right to participate in the use, management and conservation of natural resources pertaining to their lands.[13]

Additionally, ILO 169 requires that governments consult indigenous groups in applying the provisions of the Convention and establish means of encouraging the free participation of these groups at all levels of decision-making regarding policies affecting them.[14]

In Brazil, at the federal level, the 1973 Indian Statute (Law N^o 6.001), an antiquated, oftentimes paternalistic, piece of legislation introduced the demarcation of indigenous territories and usufruct of the resources found within those territories.[15] An updated statute, containing more extensive rights to land, education and self-determination, has been stalled in Congress for the past eight years.[16]

The 1988 Constitution contains articles relevant to the issue of indigenous rights. In addition to giving legal standing to the indigenous, the Constitution grants land rights and calls explicitly for the demarcation of traditional territories. Most important is Article 231, §2, which states, "The lands traditionally occupied by Indians are intended for their permanent possession, and they shall be entitled to exclusive use of the riches of the soil, rivers, and lakes existing thereon."[17] This article offers the basis for indigenous rights over the genetic resources found within their territories, and is currently threatened by an amendment proposal (see Executive Bill).

The primary government agency responsible for indigenous issues is the National Foundation of the Indian (FUNAI), created by law in 1967 as a substitute for the Indian Protection Service (SPI), which had lost credibility. FUNAI is headquartered in the national capital, Brasilia, with 47 regional offices located across the country. Among the agency’s responsibilities are medical assistance, basic education, and the demarcation, assurance and protection of the lands traditionally occupied by indigenous groups. It is FUNAI’s duty to protect the indigenous territories by preventing the encroachment of unauthorized personnel. The agency, however, has a history of conflicting interests and continues to evoke a negative comment from many of the indigenous it is intended to serve.

The Paris Convention, first signed in 1883 and most recently revised in 1967, remains the foremost international agreement on IPR. The 1961 International Union for the Protection of Plant Varieties (UPOV), presently consisting of 44 signatory nations, continues to grow in importance, particularly as biotechnology replaces traditional plant breeding methods. The 1991 Trade Related Aspects of Intellectual Property (TRIPs) agreement of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) currently exercises the strongest effect upon AGR policy, requiring signatory countries to bring their national IPR regimes in line with standards set in the agreement and calling for the protection of plant varieties by either patents or a "sui generis" system of property protection.[18]

As a signatory nation of the TRIPs agreement, Brazil proceeded to pass legislation to such an effect, beginning with the Industrial Property Law in 1996.[19] The seed for this action was planted in April 1991, when an IPR bill drafted in consultation with the United States government was sent to Congress. In October of that year a Special Commission on Industrial Property was created in the Chamber of Deputies and held public hearings during November and December 1991.

For the next two years, compromises between various interests led to a version of the bill that was approved in the Chamber of Deputies in June 1993. This version stated very clearly that natural biological material and natural biological processes are not inventions, and could not, therefore, receive patents.

During the debate on the House bill, Senator Marina Silva of the Workers’ Party (PT) proposed two additional clauses that would explicitly address IPR in relation to traditional communities and biodiversity. The first, building on an article in the chapter on patent titles, stated:[20]

Local communities and indigenous populations with traditional lifestyles relevant to the conservation and sustainable use of biological diversity shall be assured an equitable share of the royalties from the relevant patent for the use of their knowledge, innovations and applied practices to the local biological resources.

The second addition proposed by Senator Marina also sought to protect the interests of the traditional populations, through requirements related to research conducted with the cooperation and participation of traditional communities. This clause stated:[21]

In the case of a patent request related to the knowledge, innovation and practices of local communities and indigenous peoples and applied to the local biological resources, the report will be supplemented by documentation indicating the precise geographic and ethnologic origin of biological material and/or the biotechnologic process and certifying in the contracting together with the local communities and indigenous populations an equitable share of the royalties from respective patents.

Both of these proposals were rejected. Once in the Senate, the bill underwent a transformation, particularly in dealing with "non-patentable inventions," which opponents felt was too restrictive. The Senate amended the bill to include specific definitions of what constituted a transgenic microorganism, in order to avoid patents on plants and animals.

A second version of the bill, prohibiting patents on naturally occurring life forms and biological materials and processes, was introduced by the Senate Constitution and Justice Commission (CCJ) in May 1995. Later that year, the Economic Affairs Commission (CAE) released its own pro-industry IPR bill, which has been characterized as a "TRIPs-plus" version, incorporating demands of the U.S. government and the pharmaceutical lobby.

It would be this third, pro-industry version that resulted in Law N^o 9.279/96, the Industrial Property Law, in May 1996. This law denies patentability to "the whole or part of living beings, except for transgenic microorganisms that meet the three requirements of patentability" (italics added) and defines transgenic microorganisms as:[22]

[O]rganisms, excepting the whole or part of plants or of animals, that express, through direct human intervention in their genetic composition, a characteristic normally unattainable by the species under natural conditions.

Thus, the final law that emerged from the various versions is considered by many to go beyond the requirements of TRIPs by catering to the biotechnology industry in allowing for the patentability of microorganisms, and certainly did nothing to advance AGR regulation.

Shortly after the passage of the Industrial Property Law, the government presented a bill in April 1997 that became the Cultivar Protection Law (N^o 9.456/97). This companion law extends intellectual property protection to include plant breeders’ rights (PBRs), thereby fulfilling the requirements of TRIPs Article 27.3 and allowing Brazil to join the UPOV in May 1999. Together, these two laws exercise a great amount of influence over how any matters of IPR will be dealt with in AGR legislation and implementation. The agencies responsible for IPR are the National Institute of Industrial Property (INPI) and the National Service of Cultivar Protection (SNPC).

Brazil was the first nation to sign the Convention on Biological Diversity. The CBD is the first international agreement to recognize a country’s sovereign right over its genetic resources, and its responsibility to facilitate access to those resources. With the passage of Legislative Decree No. 2 in 1994, Brazil ratified the CBD, adopting its articles as national law.

Another important international environmental effort launched at the 1992 Earth Summit is the G-7 Pilot Program for the Conservation of Tropical Forests in Brazil (PPG-7), funded by the Group of Seven industrialized countries and coordinated by the government of Brazil and the International Bank for Reconstruction and Development (IBRD). The United States has pledged to contribute at least $10 million over five years to the core program.

The PPG-7 contains a number of conservation projects, including the Natural Resources Policy Project, which supports state-level environmental enforcement and environmental impact assessment (EIA) and helps in the demarcation of indigenous reserves.

On the national level, the Brazilian federal government has taken a number of actions in recent years to improve upon the foundations of its environmental law. Beginning with the 1965 Forest Code (Law N^o 4.771/65), which recognizes the forests as "goods of common interest to all inhabitants of the country," and is still in force at the time of writing, Brazil has made legitimate efforts to pass legislation aimed at protecting the country’s valuable natural resources. The Forest Code has served, among many other duties, to legally classify the nation’s forests in order to determine how they may or may not be utilized, from prohibited exploration to free exploration.

The 1988 Constitution contains a number of environmental provisions. Article 225, in particular, deals exclusively with environmental protection, including specific references to the preservation of diversity and the integrity of genetic patrimony.[23]

One federal environmental action particularly relevant to the issue of biological prospecting was the 1990 passage of Decree N^o 98.830 and Regulation N^o 55, the accompanying regulatory statement, issued by the Ministry of Science and Technology (MCT). The purpose of the Decree is the regulation of collection by foreigners of data and scientific materials in Brazil. The program is coordinated and implemented by the National Council of Scientific and Technological Development (CNPq), a private foundation linked to the MCT, and all paperwork must pass through the Secretariat for International Cooperation (SCI), part of Embrapa.

Requisites for foreign research institutions include:[24]

• Participation and shared responsibility with a similar Brazilian institution with high technical and scientific reputations in the research area related to the project to be executed;
• Completion of essential documentation, including the Form for Scientific Expedition, which is obtained from SCI/CNPq. The form is sent to the foreign research institution by the Brazilian institution for consent to the terms of the program. Once the documents are returned, the Brazilian institution fills out the form and sends it to SCI/CNPq.
• A declaration authorizing the MCT to translate, publish and disseminate the results of work done in Brazil.

Once completed documentation has been received, the CNPq has 120 days to process and analyze requirements for authorization. According to an article published in Veja, however, this process has at times taken up to two years to complete, resulting in less research being performed in Brazil.[25]

Another problem attributed to Decree 98.830 has been the difficulty in finding Brazilian researchers to co-sponsor projects, particularly in the Amazon region. An article appearing in O Globo blames CNPq, which is responsible for administering grants to Brazilians seeking master’s degrees and doctorates, for allotting to the northern region of the country only 3.3% of all grants awarded.[26]

While CNPq functions primarily as a grantmaking institution, the agency most responsible for enforcement of environmental legislation is the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA), created by law in 1989 as part of the Ministry of the Interior (MMA) by fusing together various government organs. Access to protected areas may only be granted by the issuing of a permit by IBAMA.

IBAMA is also responsible, together with the Federal Police, for enforcing the most recent significant environmental legislation, passed in 1998 — the Law of Environmental Crimes (N^o 9.605). A sweeping piece of legislation that consolidates many disparate laws, the new law includes increases in the fines and penalties applied to those conducting illegal logging. The law is still too new to determine the impact it has had on environmental protection in Brazil.

An article in the original bill dealing specifically with the exportation of plant species, germoplasm or other subproducts of plant species was vetoed. President Fernando Henrique Cardoso offered the following explanation for his veto:[27]

Biodiversity and the norms of protection of native plant species, for their amplitude and importance, must be the object of specific uniform norms. Furthermore, there are already legislative bills along these lines that are being addressed in the National Congress.

Thus, President Cardoso appeared to recognize the complex issues surrounding AGR policy and the need for specific legislation to address these issues. As the president noted, legislators have begun to address this need, presenting bills aimed at implementing the CBD and regulating genetic resource access. As of 1999, three bills seek to address the complex, tripartite needs of AGR legislation.

In 1995, recognizing the imminent failure to amply address the threat of biological prospecting in the patent law, Senator Marina Silva drafted legislation dedicated exclusively to the complex issue of AGR. Bill N^o 306/95, "On Access to Brazilian Biodiversity and Instruments of Control and Access to Genetic Resources," is one of the first efforts by a Brazilian legislator to implement the provisions of the CBD. Senator Marina’s intention in proposing the need for legislation was to spark interest in the issue, to encourage open, public debate, and to introduce a law based upon the reality of present-day Brazil and the needs deriving therefrom. Nilo Diniz, a member of the Senator’s staff, explained:[28]

Proposing biodiversity legislation was not just about trying to regulate genetic resource access, but about introducing the issues to Brazilian society and engaging in debate. So that the universities and other sectors of society would be more attentive when researchers arrive to perform their work; so that indigenous and other organizations would be more attentive.

The following year was dedicated to achieving this aim. During August and September 1996, the Senate Committee on Social Affairs held public audiences in São Paulo, Manaus and Brasilia to determine which sectors would most be affected by the bill. Representatives from agriculture, industry, universities, research centers, local and indigenous communities and non-governmental organizations were invited to attend.

In October, together with the Ministry of the Environment and other entities, the Committee held an important workshop in Brasilia. Among those in attendance were representatives from government research centers (the Institute for Amazon Research (Inpa) and the Brazilian Agricultural Research Enterprise (Embrapa)), institutes of higher learning (the University of Brasilia and the University of São Paulo), and NGOs (including the World Wildlife Fund (WWF) and the Instituto Socioambiental (ISA)). The Ministry of the Environment was represented as well.[29]

Senator Marina’s initial aim was successful. One of Brazil’s leading newspapers, O Globo, published a series of articles on biopiracy and the issues surrounding AGR. Veja also ran stories addressing the growing concern over the nation’s cultural patrimony. As legislators argued the merits and shortcomings of Senator Marina’s bill, the nation awoke to the need for AGR regulation.

Meanwhile, the Executive branch of the federal government, recognizing that it was essentially unprepared to discuss an issue about which it knew very little, convened an Interministerial Group for Access to Genetic Resources (GIARG), in July 1996. Over the next two years, representatives from nine government ministries met to discuss and analyze the issue from the perspective of the Executive branch. The result of this series of closed meetings was a bill incorporating the Executive’s concerns, as well as a proposed amendment to the Constitution to ensure that genetic resources located on indigenous lands belong to the government. The bill was sent to the Senate in August 1998. The constitutional amendment, seeking to change Article 20 to include among other goods belonging to the Union, "the genetic patrimony, excepting human, compatible with the law to define the forms of access and exploration," remains up for debate.[30]

Aware that the Executive branch would soon present its own version of AGR legislation, the Workers’ Party, via Deputy Jacques Wagner, introduced a bill modeled on Senate Bill N^o 306/95 to the Chamber of Deputies (N^o 4579/98) with the intent of accelerating passage of Senator Marina’s bill. There are very few differences between the two bills, although the Wagner version incorporates the right of traditional communities to deny research to be performed.

In examining the differences between the three pieces of proposed legislation, it is important first to highlight the differences in their historical backgrounds.

Senator Marina’s bill emerged at the behest of non-governmental and indigenous organizations that were becoming increasingly aware of the biopiracy taking place in the Amazon, as well as other regions of high biodiversity located in Brazil. The Marina bill was drafted in consultation with these organizations, and public meetings were held to incorporate stakeholder concerns. The resulting bill, and the Jacques Wagner bill which incorporates further suggestions, may be characterized as proposed legislation crafted with public participation.

The Executive bill, however, arose from a different set of circumstances. First, the idea of a bill from the Executive power came in response to concerns over the Marina bill. In crafting an Executive version of AGR legislation, the interministerial group sought to compensate for what was felt to be lacking in the Marina version: objectivity, conciseness, and limited details regarding regulation.[31] The Executive bill, in contrast to the Marina bill, was conceived and constructed by the inter-ministerial group behind closed doors, incorporating no outside input. It is, essentially, a bill by bureaucrats for bureaucrats.

Due to the different circumstances surrounding the drafting of these bills, each deals with the issue of AGR in a manner reflective of its origin. In particular, the way in which each proposes to deal with authorization of potential bioprospecting effectively demonstrates the ideological differences between legislation containing stakeholder input and that written in private.

The Marina bill calls for the creation of a Genetic Resource Commission, assembled by the Executive power and composed of a broad range of representatives from the federal, state, and Federal District governments, the scientific community, local communities and indigenous populations, "access agencies" (defined in Article 14, as "public entities and private, non-profit organizations, that maintain activities related to the conservation and sustainable use of natural resources"), NGOs, and private enterprises. The Jacques Wagner bill is essentially the same, excepting the exclusion of access agencies and the inclusion of "traditional populations" alongside local communities and indigenous populations. Both bills explicitly state that there will be equal representation between members of public power and members of communities and non-governmental institutions, including among the latter, educational and research instituitons.[32]

The Executive bill, on the other hand, seeks a more refined bureaucratic process, in which the Executive power will assign a deliberative council and a technical assessment committee.[33]

Definitions of key terms also differ between the bills. Perhaps the most important term in need of definition is "genetic resource". What is a genetic resource, and how does it differ from a strictly biological resource? The Marina and Wagner bills define genetic resources as:[34]

[G]enetic material with a real or potential value, including the genetic variability of plant, animal and microorganism species which make up biodiversity, of present or potential socio-economic interest, for immediate utilization or in genetic improvement, in biotechnology, in other sciences, or in undertakings to those ends.

Biological resources, meanwhile, are defined as, "organisms or part thereof, populations or any other biotic component of ecosystems, comprising the genetic resources." While biological resources exist as passive entities in an ecosystem, the genetic resources are charged with commercial potential.

The Executive bill strategically defines "genetic patrimony" in place of "genetic resources," thereby underscoring the federal ownership of the resources. The thorough definition offered in this bill for "genetic patrimony" is as follows:[35]

[I]nformation of genetic origin, contained in the whole or in part of a plant, animal, or microbial specimen, in substances stemming from the metabolism of these living beings and from extracts obtained from these living or dead organisms in situ or maintained in ex situ collections that have been collected in in situ conditions, in national territory, including the continental platform, territorial waters, and the exclusive economic zone.

The Executive bill offers no definition for "biological resources".

The most striking difference between these definitions is the clear economic nature of genetic resources vested in the Marina/Wagner definition, and the clear intention to apply the materials in biotechnology or other commercial endeavors. The Executive version, on the other hand, is more concerned with establishing governmental ownership of materials, ensuring that any material that can be connected to Brazil falls under this definition.

The definitions of "access to genetic resources," then, are derived from the preceding definitions. In the Marina bill, the definition is as follows:[36]

[A]cquisition and utilization of genetic resources, genetic material and derived products, under in situ or ex situ conditions, found in national territory or in which Brazil is the country of origin, and associated with the knowledge of indigenous populations and local communities associated with genetic resources or derived products and domesticated and semi-domesticated agricultural crops in Brazil, having ends of research, bioprospecting, conservation, industrial application or commercial exploitation, among other ends.

The Jacques Wagner bill is again, almost identical, with the addition of "traditional populations" alongside "indigenous populations" and "local communities."[37]

The Executive bill, in turn, defines "access to genetic patrimony" as:[38]

[T]he acquisition of a component sample of genetic patrimony for scientific ends, for research, for technological development, bioprospecting or conservation, aimed at industrial application or other uses.

Here, the most notable difference between the bills is in the inclusion or exclusion of indigenous or traditional knowledge as a source for genetic resources. The Executive bill does, in fact, address "associated traditional knowledge" under a separate definition:[39]

[I]ndividual or collective information or practice of indigenous or local communities, with a real or potential value associated with genetic patrimony.

In the Marina bill, as well as that of Jacques Wagner, the definition given for "traditional knowledge" is similar, with the notable inclusion of the phrase "protected or not by an intellectual property regime".[40]

The Executive bill, then, treats access to traditional knowledge as distinct from access to genetic patrimony, whereas the Marina bill clearly links the two. The Marina version appears to be more in keeping with the intentions of the CBD, which clearly links genetic resources and traditional knowledge.

In addition to the technical definitions for a genetic resource, each bill contains a unique legal definition. Article 2 of the Marina bill explicitly establishes that genetic resources and derived products are public goods of the Union for special use.[41] The Jacques Wagner bill considers genetic resources and derived products as "goods in the public interest".[42] The Executive bill, as would be expected, considers genetic patrimony to be goods belonging to the Union, implying that only the government has a right to decide their use.[43]

The Marina and Jacques Wagner bills place responsibility with the Public Prosecutor to protect the genetic patrimony and biodiversity of the country, thereby ensuring sustainable use and the PIC of communities involved in research.

However, in questions related to the patenting of traditional knowledge, Cristina Azevedo of the São Paulo State Program for the Conservation of Biodiversity (PROBIO/SP) has rightly pointed out that the bills are not particularly clear. On the one hand, Azevedo writes, the bills state that rights held by traditional communities relative to their knowledge can not be alienated, confiscated, nor taken away. On the other hand, there are articles in the bills that clearly allow for the possibility of granting patents, stating that a patent request must include PIC, and that indigenous populations and traditional communities should receive benefits, including, among other forms of compensation, IPR, for the conservation of genetic resources.[44]

The Executive bill has no explicit reference to the patenting of associated traditional knowledge. In terms of benefit sharing, the bill guarantees indigenous populations a "just" percentage for their knowledge and involvement, but leaves any specifics to future regulation by the law.[45]

All of the issues discussed above are of great importance to the fair regulation of access to genetic resources. The proposed legislation addresses numerous other important questions, and the three bills differ in other significant ways beyond the purview of this report.

At the time of writing, Congress has passed no version of federal AGR legislation. According to House of Deputies Technical Assessor, José Edvaldo Gonçalo, the President of the House agreed, in May 1999, to create a commission designed to look at the three bills, but this has not yet occurred.[46] A substitute version of the bill proposed by Senator Marina, submitted by rapporteur Senator Osmar Dias in 1997, has already passed the Senate, but can not advance until this special commission has been created and has reconciled the three bills.

As the bills remain stalled in political limbo, Senator Marina and Deputy Wagner hold strategic meetings with staff and sympathetic NGOs and academics, determining what is necessary to move the agenda forward. Keeping the issue in the public eye is essential to their strategy.

At this stage it is unclear which version of the proposed legislation will prevail. Because the Marina substitute bill has already passed the Senate, it has priority over the other two bills. Edvaldo believes there are two potential roads: one, the possibility of more ample legislation, incorporating the ideas of the Jacques Wagner bill; or the other, a new piece of legislation using the Executive bill as a base.[47] Diniz believes the latter is probable, explaining, "The government does what it wants in Congress; we have to work with that reality."[48] There is, however, hope on the part of Senator Marina and her staff to create new legislation using the existing bills.[49]

While the country waits for a resolution to this situation, two states in the Amazon region have already passed AGR legislation: Acre, in the northwest corner of the country bordering Bolivia and Perú, and Amapá, near the border with French Guiana.

Acre is a state of about 500,000 inhabitants, spread across 22 municipalities. In the last thirty years, the state has experienced high population growth, as well as witnessed a shift in population concentration, from the forest to the cities.[50] Acre has a long history of sustainable development efforts, including the creation of a number of extractive reserves where lands have been set aside for rubbertapping and other forms of sustainable use.

The idea of extractive reserves was promoted by the late Chico Mendes, an Acrean rubbertapper who was killed by cattle ranchers in 1989. Because of the activity of Mendes and the National Council of Rubbertappers (CNS), the sustainable development paradigm is particularly strong in Acre. The CNS and other grassroots organizations also contribute to policy debate in the state.

With an area occupying 15,314,990 km² (about 5,913,125 square miles), Acre has maintained 95.2% of its tropical forest intact.[51] Acre also has an active indigenous population, including more than 11 ethnic groups and 28 indigenous areas, of which only 13 are presently demarcated.[52] With the ascendancy of Jorge Viana (PT), colleague of Chico Mendes, to the governorship in 1998, the grassroots organizations have found a sympathetic ear to their concerns about sustainable development and biopiracy in the region.

According to figures from IBAMA, 500 kilograms of seeds from various species were clandestinely smuggled from Acre in 1996.[53] Acreans, particularly those working with grassroots organizations, are aware of the history of biopiracy in the region, and the potential benefits, both ecologically and economically, that can arise from a well-regulated AGR policy.

Passage of AGR legislation at the state level, in spite of long-standing anti-biopiracy sentiments, required a stimulus. This came in 1997, when the Union of United Indigenous Nations of Acre (UNI/AC), together with the Roman Catholic-based Indigenist Missionary Council (Cimi) filed a complaint against the non-governmental organization, Selvaviva.

The case touched off a great deal of controversy across the entire Amazon region. Headed by the Brazilian-nationalized Austrian Ruediger von Reininghaus, better known as "Rogério," Selvaviva was accused of biopiracy for activities being conducted in the Valley of Juruá.

The NGO, created in 1992, listed as its objectives:[54]

[T]he collection and distribution of medicine and donations to the indigenous communities and riparian population, received from pharmaceutical industries ...

According to a brochure printed in three languages (Portuguese, English and German), Selvaviva expressed interest in cataloguing and scientifically synthesizing all of the secular traditional medicine of the indigenous peoples, for later exportation to the large, globally-recognized, pharmaceutical industries — including Bayer, Ciba-Geigy and Sandoz.[55]

Selvaviva received authorization from neither FUNAI nor the state environmental regulatory agency (IMAC) to perform any type of research in the state. Yet, in 1994, Rogério was seen filling out more than thirty cards that contained the names of medicinal plants and clarification about their medicinal use. An UNI representative also claimed to have seen three on-site greenhouses containing medicinal plants native to the region occupied by the Kaxinawá.

This particular project, in fact, was conducted with the participation of the Organization of the Indigenous Peoples of Tarauacá (OPITAR).[56] In return for their participation, the most Rogério ever offered in return was some medicines received from Bayer, Hoechst and similar companies, consisting mostly of aspirin.[57]

As the case against Rogério received greater public attention, state lawmakers turned to drafting legislation that would prevent future abuses of genetic resource access. Acre State Deputy Edvaldo Magalhães, of the Communist Party of Brazil (PC do B), produced a bill modeled on the Marina bill, intended to "stop the modern form of colonialism which has been growing in the Amazon region for some years."[58]

Although criticized as "rushed," the rapid passage of the Acre legislation demonstrated that concern had been building in the region for quite some time, and that the people of Acre were unwilling to wait for the federal government to take action.

State Law N^o 1235/97, like the Marina and Jacques Wagner bills, defines access to genetic resources to include the knowledge of indigenous and local communities. It places the responsibility to preserve the diversity, integrity and sustainable use of Acre’s genetic patrimony on the State Executive Power.[59]

The Acre law explicitly states three areas requiring the prior informed consent of the local communities and indigenous peoples: (1) activities relating to AGR in areas that they occupy; (2) their domesticated agricultural crops; and (3) the traditional knowledge that they hold.[60]

The law includes a number of items aimed at developing sustainable development of the state’s biodiversity. Article 5, VII, calls for the "protection and incentive to cultural diversity, placing value on the knowledge, innovations and practices of local communities over the conservation, use, management and utilization of the biological and genetic biodiversity."[61]

Article 10 enjoins the State Secretary of the Environment, Science and Technology (SEMA) to "plan, coordinate, supervise, control and evaluate the development of AGR activities," and to produce an annual report relating the level of threat to the state’s biodiversity and the potential impacts of its deterioration on sustainable development. The law also allows SEMA to charge for research authorization, with the money collected destined for a Special Environmental Fund of the State of Acre (created through prior legislation).[62]

As with federal efforts to regulate AGR, the Acre law calls for decisions to be made by the State Council on the Environment, Science and Technology (CEMAT) and by a commission of representatives from the state government, municipal governments, state research entities, the scientific community, and entities representative of the local communities and indigenous populations.[63] Regarding the traditional populations, it is unclear to which entities the law is referring.

In the case of benefit-sharing, the law is very specific about researcher requirements. When the solicitation for AGR involves traditional knowledge or a domesticated agricultural crop, the law calls for an annex to the contract — called the "accessory contract of utilization of traditional knowledge or of a domesticated agricultural crop". The accessory contract is to be underwritten by SEMA, and establishes just and equitable compensation relative to the benefits forthcoming from the utilization of such traditional knowledge. The legislation also clearly indicates that the state, as well as the companion institution representing Brazil in the research (such as Embrapa), will participate in any economic benefits resulting from genetic resource access.[64]

The Acre law calls for the contracting parties to determine the eventual intellectual property rights and product commercialization within the access contract. The contract must also include all the potential benefits that can arise from access, categorizing them according to benefit type: economic, social, technical, technological, scientific and cultural.[65]

In recognition of the unique situation of the indigenous populations, the law protects the rights of local communities to benefit collectively and to receive compensation through intellectual property "or through other mechanisms." The law proceeds to describe a concept of collective rights based upon the intergenerational and shared nature of indigenous knowledge.[66]

Finally, the law includes a provision for the local communities to deny permission to collect biological and genetic resources, as well as to deny access to traditional knowledge, when it can be demonstrated that "these activities threaten the integrity of their natural or cultural patrimony."[67]

While it is unclear what might constitute an actual threat to the indigenous peoples, it is important to note that not all bioprospecting and research projects are seen as intrinsically bad by the local communities. Marcel Gomez da Silva, UNI/AC Secretary, believes that a good contract is one containing ecotourism or biodiversity research and that ensures researchers will work with the community. The problem, he notes, is not the research, but the knowledge within the research.[68]

It is not yet clear what impact the Acre law will have on the region. As an educational tool, it has already accomplished its objective of stimulating public debate and awareness of biopiracy issues. In practice, however, it remains to be seen how the law might affect those interested in performing research in the state. The Federal University of Acre is considered to be one of the most important Amazon research institutions in the country. This creates an incentive to choose Acre over another Amazon state, in spite of bureaucratic measures that might dissuade a potential researcher. But there is still a lingering concern by some that the costs imposed by the state may not be worth the potential benefits to the researcher. This issue will be explored in a later section (see Fear of Bureaucracy).

Amapá has existed as a state for only a little more than ten years. Prior to this, the area was considered a federal territory. It is made up of 15 municipalities. Two large reserves are home to four indigenous groups: the Galibi, the Karipuna, the Palikur and the Waiãpi. 25% of the state’s area is legally protected.[69]

Like Acre, Amapá has not experienced the rapid environmental destruction of other Amazon states, with less than 2% of its area deforested.[70] Concerns for maintaining the pristine forests led to the state’s adoption of the Sustainable Development Program of Amapá (PDSA). The program is described as follows:[71]

[A] meaningful, integrated, coherent and refined model by which the Amazon is presented at its most valuable: its potential for natural riches, its strategic insertion on the international stage, the biological diversity of its ecosystems and the peculiar cultural identity of its society.

The PDSA additionally seeks a way to guarantee the maintenance of the knowledge and culture of the state’s indigenous and traditional communities.[72] Thus, the PDSA, adopted in August 1995, clearly laid the foundations for a law regulating AGR.

In response to growing concern over biopiracy more than to any particular event, Amapá State Deputy Janete Capiberibe (PT) proposed legislation similar to the Acre law, which would allow Amapá and its stakeholders to determine access to the state’s genetic resources. As with the Marina bill, potential stakeholders were invited to meetings in the state capital, Macapá, to discuss the proposed legislation.

Among the stakeholders invited were representatives from the Office of the State Secretary of the Environment (SEMA), the Amapá Institute of Scientific and Technological Research (IEPA), IBAMA, local indigenous organizations, NGOs, the Federation of Industry and the Federation of Agriculture.

SEMA sponsored a forum in which participants had the opportunity over the course of a few days to read the bill, item by item, and comment upon the text. According to a researcher present at the forum, the Federation of Industry was initially not in favor of the law, but eventually assented to the will of the state.[73]

With the support of stakeholders, Amapa Law N^o 388/97 was passed at the end of 1998. In June of the following year Governor João Alberto Rodrigues Capiberibe (PT) issued Decree N^o 1624, which implemented the new biodiversity law by outlining further regulations in detail.

The law itself is far more succinct than its Acre counterpart, leaving the majority of details to the executive decree and subsequent regulation. It very quickly establishes, in its first article, the inclusion of local communities and indigenous peoples in the decisions relating to AGR in the areas they occupy, as well as their participation in the economic and social benefits resulting from AGR.[74]

Decree N^o 1624 contains the vital information regarding implementation of the law. Here the governor has very carefully defined 49 terms related to AGR, limiting alternate interpretations of key concepts, such as "improver’s rights" (the legal powers guaranteed to the creator of a plant variety or the exclusive right of its commercialization during a determined time) and "collective intellectual rights" (protection of traditional knowledge connected to the innovations and practices of the communities that hold it).[75]

SEMA is charged with the authority to "plan, coordinate, supervise, control, license, authorize and evaluate the development of activities of genetic resource access," as well as to guarantee and facilitate the participation of local communities and indigenous peoples in the decisions over AGR.[76]

Permission granting access, however, will be awarded by the Access to Biodiversity Resources Commission (CARB), which is to be composed of representatives from the following: the regional office of Embrapa, SEMA, the State Attorney General’s Office, IEPA, the Legislative Assembly, the regional office of IBAMA, the Federal University of Amapá, the municipality involved, the Secretary of Health, the Secretary of Justice, the community organization involved, the indigenous population involved, the local environmental NGOs, the extractavist organization, the workers’ union, the forest engineers, the fishers, the Organization of Cooperatives (OCEAP), the GTA, the Federation of Industries and the Pastoral Land Commission (CPT).

The CARB members will be assisted by Technical Councils responsible for evaluating the technical and environmental viability of the access, as well as guaranteeing the sustainable management of biodiversity. SEMA will be responsible for all coordination efforts.[77]

The Amapá regulation is particularly well informed regarding the difficulties of determining compensation for access to indigenous peoples and local communities, as well as for the use of traditional knowledge. The decree calls for the valuation to contain four distinct types of value:[78]

• Value of convenience. Valuation relative to the well being that the product brings to human beings.
• Market value. Valuation for buying and selling the product.
• Moral value. Relative valuation of the good in relation to itself.
• Value of choice. Valorization in relation to how much such a good is useful in relation to future discoveries.

Although the above definitions are deliberately vague, they offer an important guideline to bioprospectors for determining how to compensate the local populations involved in the research project. By establishing guidelines, the Amapá law will help traditional populations negotiate contracts that look to the future, after the genetic resource and knowledge have been converted into a commercial good. It remains to be seen how the process from paper to action will take place.

A law alone serves very little purpose without a mechanism for enforcing it. The Batalhão Ambiental, or Environmental Battalion, was created by decree in 1998, to be exclusively an environmental police force.[79] With 27 posts in the state, the Battalion is the only environmental organ existing in all parts of the state. In the capital, Macapá, 39 members of the force perform administrative and police work.

The primary objective of the Battalion is environmental education. Members of the force hold meetings in schools and communities to explain environmental regulations, such as prohibited actions, and to teach citizens how to make denouncements.

But unlike regular police, members of the Battalion must attend programs for capacitating environmental policing. These consist of intensive, 15-day training courses. In addition, every month there is an opportunity for further learning in other parts of the country. Some of the members of the force are also involved in a two-year environmental leadership program conducted in Brazil and abroad.

Force members Lieutenant Luiz Carlos and Major Miguel Ferreira have both taken advantage of the numerous educational opportunities, and have developed a very good background on biodiversity and bioprospecting issues. When the Amapá biodiversity law was passed, members of the force met with a lawyer, who explained the intricacies of regulation to them. They now have a better general understanding of how they can apply the law.[80]

While the Battalion certainly appears to be a positive step in the implementation of environmental legislation in the state, there are still some concerns regarding its ability to communicate with communities affected by laws they often do not understand. One NGO director recommends that in addition to learning environmental law, members of the Battalion should learn about the people in the environment. This would require training in the customs of traditional populations of the region.[81] Nevertheless, the Environmental Battalion represents a positive trend in efforts to strengthen relations with the communities. It also is beginning to build partnerships with federal and state agencies. IBAMA, INCRA and FUNAI have all expressed interest in developing programs together with the Battalion.[82]

It is not clear whether the states have any right to regulate access to the genetic resources found within their boundaries, or whether only the federal government can write AGR policy. Among the resources belonging to the Federal Union, the 1988 Constitution does not expressly mention genetic resources. It does, however, state that it is "incumbent upon the Union, the States, and the Federal District to legislate concurrently on ... forests, hunting, fishing, fauna, reservation of nature, defense of the soil and natural resources, protection of the environment, and pollution control."[83] States and municipalities are also assured of participation in the "result of the exploitation of petroleum or natural gas, water resources for the purpose of generating electric energy, and other natural resources in their respective territory ..."[84]

It appears, therfore, that the states may regulate access, at least until the passage of federal legislation. In terms of protecting the resources, any benefits returned to the state will better help address problems at the local level. The question, then, is why the states have been able to rapidly push through AGR legislation while it remains frozen in political maneuvering at the federal level.

Not all Amazon states have managed to address AGR successfully. Amazonas and Pará, two states with the Amazon’s largest cities (Manaus and Belém, respectively), have offered no statewide legislation. Rondônia remains a lawless no-mans-land. It seems the success encountered in Acre and Amapá can be attributed to the following factors:

• Progressive politics. Acre Governor Jorge Viana has long been an activist, since the days of struggle alongside Chico Mendes and the rubbertappers. Since entering office he has emphasized the importance of sustainability and has supported traditional communities. In Amapá the Capiberibes, Deputy Janete and Governor Edvaldo, have likewise put forth a progressive agenda. In contrast, long-time Amazonas governor Amazonino Armando Mendes (PFL) was known for years as "Chainsaw" Mendes for his development policy of distributing chainsaws to farmers in the interior.
• Limited deforestation. Both Acre and Amapá retain over 95% of their tropical forest. Historically these two states have managed to avoid the vast destruction that marks other Amazon states. Policymakers recognize an opportunity to act preventively.
• Powerful grassroots organization. Acre has a history of successful grassroots actions. Through the success of their actions, groups such as the CNS and UNI/AC have demonstrated the power of special interests. While Amapá does not have as illustrious a history, there is a strong grassroots coalition participating in state environmental policy. The GTA, in particular, is well represented in Amapá.
• No established lobbying apparatus. The moderate version of the Patent Law was defeated due to pressure from Interfarma, the Brazilian representative of the powerful U.S. Pharmaceutical Research and Manufacturer’s Association, or PhRMA.[85] Brasilia, like most capital cities, swarms with lobbyists representing industries vital to the country’s economic development; if these industries feel threatened by potential legislation, they will work to see it is not passed. The economy of Amazonas is highly dependent upon the industrial pole, Manaus. Acre and Amapá, on the other hand, are not states with a high amount of industry, and therefore few industry representatives follow state legislation.
• Apparently innocuous legislation. Without lobbyists, legislators may often be uninformed about certain issues. When a bill calling for sustainable development and protection of a state’s resources is presented to the state congress, it will generally appear to be non-threatening to legislators, thereby limiting debate and leading to easy passage.

The federal Executive bill has been written with a very deliberate nebulosity regarding the function of the proposed governmental deliberative council and the governmental technical assessment committee responsible for granting access to the country’s genetic patrimony. The other legislative measures, both at the state and federal level, are more specific regarding the composition of the committees. This is because the Executive bill, drafted primarily by Embrapa, reflects the fear many researchers have of a bloated bureaucracy interfering with years of project preparation.

Will the fear of bureaucracy scare potential researchers into choosing other, less-regulated areas to perform their research, as many suggest? Could an overbearing bureaucracy actually have the unintended effect of encouraging biopirates to subvert the law?

Most experts in the area seem to agree that companies interested in performing bioprospecting are eager for an unambiguous law regulating access. Rather than be labeled biopirates, companies would like to perform research in as public a manner as possible, following clearly written guidelines. "If a company thinks that the resource is worth enough for them to invest," explains Charles Clement of the government research facility, Inpa, "they’re going to do their homework. They’ll be willing to negotiate with the communities."[86] They just need to know the guidelines by which they are to conduct negotiations.

Carlos Henrique Schmidt, Executive Director of the Institute of Socio-Environmental Studies (IESA), believes that a researcher choosing between Amazonian states would not choose Amapá because "it presents many bureaucratic difficulties." As he notes, all the genetic resources exist throughout the Amazon.[87] Referring to CARB, the commission for determining access in Amapá, GTA member Raimundo Apóstulo Santana says, "it looks good on paper, but the government doesn’t think about what it is like in action."[88]

Antonio Claudio Almeida de Carvalho, Director of the Center of Botanical Research, believes that the Amapá law will not affect the decision to do non-commercial research in the state. He believes that it will, however, pose a risk of losing commercial research to other states. While the law does not interfere with the research itself, Almeida believes it will increase the cost.[89] Biologist Elder Ferreira Morato concurs, adding "the researcher has a great fear of bureaucracy" due to the nature of the financing of research through grants. AGR legislation poses difficulties in unexpected additional costs that are hard to identify at the time of applying for the grant.[90]

Legislation regulating AGR is still too new to determine its long-term effects upon bioprospecting. But the federal Decree 98.830, regulating foreign collection of data and scientific materials, and the accompanying Regulation 55, may be informative in assessing how the installation of a bureaucracy has affected foreign research in Brazil.

No studies have been done determining exactly what the impact of Decree 98.830 has been. According to an article that appeared in Veja, in 1998 only 18 researchers from other countries were granted authorization to work in Brazil; this was five less than in 1996.[91] The article did not provide information, however, as to how many researchers had applied each year and what the circumstances for denial were.

Judson Ferreira Valentim, Research Agronomist with Embrapa, disagrees with the article, stating that Decree 98.830 has not affected the number of projects.[92] Cristina Azevedo says that researchers she has spoken with at the New York Botanical Gardens have indicated there was no problem.[93] Yet Thomas Lovejoy of the Smithsonian and World Bank told Veja, "If there were not so many obstacles, we would be able to invest more in research in Brazil."[94] And Márcio de Miranda Santos of Embrapa warns that any law that establishes excessively bureaucratic proceedings for access tends to impose strong restrictions upon the interchange of genetic resources, which can imply grave impediments to the scientific-technological development for those areas dependent upon genetic resources.[95]

In defense of the streamlined process of the Executive bill, Secretary of the Ministry of Scientific Development, Fernando Reinach, told Globo reporters:[96]

The Amazon Region covers many countries. The forest is not exclusively Brazilian. If we create a highly restrictive policy, foreign researchers will end up collaborating with the Guianas or Venezuela. It is necessary to control, true, but not with paranoia.

But Senator Marina does not believe the Executive bill provides the necessary control. "Transfer the bureaucracy to bureaucrats," she asks sarcastically, "Who is going to say what constitutes traditional knowledge? The bureaucrats or the government?"[97] And in reply to the Veja article, she writes, "If the path of non-regulation contributes to the advance of science, how can you explain the years in which we have had neither a law nor great progress in biotechnological research in our country?"[98]

With the exception of the Executive bill, all of the AGR legislation discussed above (both approved and pending), include a mechanism for some form of PIC. It is a testimony to the hard work of the many advocacy groups and indigenous organizations, as well as academicians and legal experts who have focused upon AGR issues, that PIC has become the sought for norm.

Also included in these bills and laws, again excepting the Executive version, is the participation of affected traditional populations in the process of approving or denying AGR. This can be seen as the result of the growing power of indigenous organizations.

The following section examines indigenous participation in the legislative process, the difficulties in determining who can represent indigenous populations, and a brief overview of a few indigenous organizations that have played an increasing role in pushing for an indigenous agenda.

One of the first problems encountered when examining indigenous participation in the legislative process is determining where the line is drawn dividing "indigenous presence" and "indigenous participation". In the meetings held to discuss and debate the Marina legislation, as well as those held in Acre and Amapá, particular care was given to invite indigenous organizations. But, while representatives may have attended the meetings, this does not always signify that they participated in the debate.

In the case of the Amapá legislation, meetings were not held until the bill had already been drafted, allowing for comments, but not necessarily direct input, into the nature of the legislation. Missico, a representative of the Association of the Indigenous Peoples of Tumucumaque, was among those invited to the meeting at SEMA. He described the event as "tedious" and recounted that by lunchtime he and a few others were hungry so they left and never returned.[99]

Of course, it is not the responsibility of SEMA or the legislators involved to insist that those who have been invited to the meeting attend, and those who attend stay. Rather, the story of Missico is meant to illustrate the difficulties in operating within a foreign culture. Missico, as well as most other indigenous representatives, does not hail from the world of daylong meetings addressing pithy legalities in a tedious, point-by-point fashion. He understood the importance of the meeting, and chose to attend as a representative of his people, but the proceedings were run in such a way as to not hold his attention.

Maria Luisa Pinedo Ochoa, from the Pro-Indian Commission (CPI), recalls a story of an indigenous leader who had been chosen to represent his group because he spoke Portuguese. The chosen representative attended meetings, but only listened, never contributing to the debate. Once the man learned how to speak, however, he began to interject his opinion; he began to understand the way to deal with the situation and how to respond.[100]

Participation, therefore, is contingent upon finding a way to involve those who would participate. In the case of indigenous participation, this would require bridging the cultural gap that separates business-as-usual Brazilian bureaucrats from the legally-naïve indigenous representatives. Failure to ensure true inclusion in the process results in nothing more than political tokenism.

Because the issues surrounding AGR policy are so complex — even for policymakers, let alone those who have little to no experience in the policy process — it is often unclear as to whether the aims and objectives of the proposed bills, at the state and federal levels, were ever clearly communicated to those who would be most affected by their passage, i.e., the local community stakeholders.

Cecilia Apalay, a FUNAI representative from the Apalay-Waiano community in Amapá, had never heard about the biodiversity law, although she was aware of an instance in which a German anthropologist came and "took away sacred information."[101]

When questioned about their organization’s involvement in the passage of the Marina bill, representatives from COIAB replied that biodiversity legislation is "for white people." According to these representatives, there is some mistrust based on past ecological projects that have been counterproductive in terms of prohibiting fishing and other activities of sustenance for the indigenous populations.[102]

For the vast majority of indigenous peoples who are involved in the struggle to have their voices heard by policymakers in Brasilia, there are far more pressing issues than biodiversity protection. In the words of one representative, "Without any doubt, instead of looking after the animals ... we will be caring for children, which is more important."[103] This is merely a question of priorities, not an outright dismissal of efforts to regulate AGR.

Good AGR policy is based upon allowing all stakeholder voices to be heard. For this reason, the majority of legislation has included "supercommittees" comprised of the numerous interests that stand to benefit or lose in the negotiation of an access contract. Once again, there is a call for indigenous representatives to participate in the decisions of the committee to grant or deny access to the genetic resources. There is no indication, however, as to who might be best suited to represent the indigenous community affected.

The form of leadership across indigenous communities is not uniform. For each echinea, or indigenous ethnic group, there is a different social organization. Tribes often have different leaders suited for appropriate tasks; perhaps one operates in the mother tongue while another is in charge of Portuguese matters.[104] Or, as in the case of the Yanomami, the societies may be acephalus, making decisions by consensus.[105]

In many cases the cacique (tribal leader) or pajé (shaman or healer) is the only person who can speak for an entire community. Missico, the representative of the Association of the Indigenous Peoples of Tumucumaque, indicated that he was a "functionary" who could perhaps make decisions for the younger people of the community, but could never represent the older members.[106]

In formulating a consistent, ethical AGR policy, it may prove very difficult to determine who in an indigenous community can approve a contract in the name of the community. On the one hand, there are groups such as the Kayapo-Mekrangnoti, in the Amazon state of Pará, who are known for an identifiable and well-structured leadership; on the other hand there are groups such as the Wayampi of Amapá whose leaders have little power and whose leadership is always contested.[107] In the latter case, it may be very difficult for Brazilian regulators unfamiliar with the nuances of each indigenous group to determine whether the leader with whom they are working is entitled to represent his or her people. There needs to be a consistent system to determine this.

The past decade has seen a rise in the creation of indigenous organizations in Brazil; Article 232 of the 1988 Constitution offered the first legal basis for the operation of such organizations. These indigenous organizations often serve as political special interest groups: holding assemblies, voting on the directorship, officially registering statutes and opening bank accounts under the organization’s name.

Some organizations are linked to a particular village or ethnic group. Others bring together various local ethnic groups from a particular geographic region, such as along a river. Still other indigenous organizations operate on an interlocal or regional scale.

The organizations are generally representative of the communities from which they come. However, these organizations do not always have long-standing commitments. In some cases an organization will work on a single project, but will not have a vision for future work. There is also difficulty with indigenous organizations in knowing whether they truly represent the majority. Often there is internal conflict within the movement, which Gomez da Silva attributes to a lack of knowledge.[108]

A few organizations operating on the regional level, however, have had a lasting influence on regional policy. Two particular groups have been responsible for advancing the indigenous agenda in the Amazon: the Manaus-based Coordinating Body of Indigenous Organizations of the Brazilian Amazon (COIAB), founded in 1989, and the Rio Branco-based Union of United Indigenous Nations of Acre and the Southern Amazon (UNI/AC), established in 1991.

Regionally, COIAB is the foremost spokesperson for any actions affecting indigenous peoples. It represents 69 organizations in nine Amazon states, or 170 Amazonian indigenous groups comprised of a total 270,000 people. The organization is run by an Executive Coordinating Body — consisting of the General Coordinator, the Vice-Coordinator, Secretary and Treasurer — who perform the daily administrative operations. There is a 10-member Deliberative Council, and a General Assembly made up of representatives from the local organizations.

The organization’s top priority is the passage of the stalled Statute of Indigenous Rights. COIAB has a committee in Brasilia that interacts with the deputies, working particularly on the issues of demarcation, health, education and economic alternatives.[109]

COIAB is democratically-structured, and two years ago adopted the idea of a strategic plan. It is part of the Amazon Working Group, and regularly shares information with other affiliated organizations. COIAB has mostly left the debate over AGR policy to trusted NGOs, such as the Amazon Victory Foundation, whose director, Muriel Saragoussi, provides them with information regarding the Marina bill.[110]

While COIAB certainly has legitimacy and support, it represents a large number of indigenous communities with different organizations and different concerns, which makes it difficult for the Coordinating Body to take a particular stance on regulating AGR. Among the many groups participating in the General Assembly, there are those that are already working with people who do bioprospecting.[111] This makes it difficult for the organization to interject itself into the national debate over AGR regulation.

There are also indigenous peoples who feel that it is backward to continue identifying themselves as Indian, even though they may be possessors of indigenous knowledge. Some of these groups, such as those involved in the lumber industry, could end up in opposition to COIAB, creating further confusion in terms of legitimacy of representation.

UNI/AC arose out of a meeting of caciques from the 16 echineas in southern Amazonia who were concerned that FUNAI was not performing its duty of enforcing the protection of indigenous lands.[112] Three local organizations and four indigenous associations belong to UNI/AC. At the end of each year there is a big meeting at which representatives discuss health, education, demarcation and other pressing problems and prepare for the coming year. Presently, UNI/AC receives financial support from a German entity, as well as British support regarding health issues.

The structure of the UNI/AC administration is similar to that of COIAB, with a Coordinator, Vice-Coordinator, Secretary and Treasurer. There are also eleven council members, chosen from the 125 communities the organization represents.

Much as COIAB works together with NGOs on issues of mutual concern, UNI/AC shares information with non-indigenous organizations and has often received help on judicial issues from Cimi. UNI/AC Secretary Gomez da Silva offers praise for Cimi in its actions on behalf of protecting the indigenous movement and in helping to bring their issues to the national stage.[113]

Together with Cimi, the association was responsible for the investigation against Selvaviva, requesting that the state and federal deputies impede in order to prevent research being performed without the consent of the community. Unfortunately, the Selvaviva case also illustrates one of the failings of an organization such as UNI/AC; OPITAR, the local indigenous organization that accepted the Selvaviva offers, should have first submitted the tentative project to the coordinating body of UNI/AC prior to approval, as is the general practice of the institution.[114]

This leads to questions of communication between the local organizations and regional organizations such as UNI/AC. In order to avoid similar instances in the future, there will have to be a strengthening in the links of the umbrella structure without incurring an obtrusive bureaucracy.

In spite of these problems, COIAB, UNI/AC and other regional indigenous organizations have established themselves as true players in regional politics, and will continue to act as the mouthpieces for the numerous concerns of the Amazon’s indigenous peoples. Progressive policymakers now turn to the organizations’ leadership to understand the position of local communities and to help seek solutions.

Only by building partnerships with stakeholders can the states begin to address the difficulties of regulating AGR. In particular, it is vital for states to disseminate accurate information regarding genetic resource access. Often communities are unaware that the research in which they are being asked to participate is against the law. In the words of Major Ferreira, "Those persons from the communities themselves have to enforce the laws against those who come from outside the communities."[115]

Likewise, sometimes the researchers themselves do not realize they are involved in potential biopiracy. Charles Clement tells the story of a German company that wrote a letter to the Federation of Industries in Rondônia expressing interest in looking for pharmaceuticals in the state. The company requested a list of research contacts and as much bibliographical information as possible about ethnobotany in the region. The Federation, not possessing such information, forwarded the letter to Inpa, requesting that they send the information directly to the company.

The letter eventually arrived on Clement’s desk. Clement returned the letter to its writers, commenting, "This is biopiracy in action." He recognized, however, that the people did not realize what they were doing was wrong: "Biopiracy can happen by mistake, as well as on purpose."[116]

Clement’s story is one of many. Lieutenant Carlos also spoke of the threat of biopiracy, suspecting that a group of Americans coming to Amapá with interest in doing research in a particular area intended on lifting samples.[117]

"One of the fundamental points for the law to be accepted and incorporated by the population," Senator Marina stated in an interview, "is information for publics at different levels, according to the peculiarities of each segment of society." One approach she has considered to achieve this end is to publish an elementary reader, with readily-accessible language, which would be distributed primarily to indigenous populations.[118]

André Lima, a lawyer with the Instituto Socioambiental (ISA), recently spent ten days in the Xingu reserve attending an assembly of indigenous leaders. He explained the concept of access to genetic resources and knowledge to the participants, who concluded that when a scientist arrives to perform research, all the communities should meet to discuss the questions related to AGR. The leaders decided that any time an outsider comes to the community with a proposal, they would consult all of the leadership.[119]

Other NGOs have also become involved in community education. SOS Amazônia, though the Acre State Secretary of Education, has led courses for teachers on biodiversity, the Amazon, environmental policy, patent law, and theories of environmental education, methodological lines, and curricula.[120] The CPI is also involved in environmental education efforts, particularly focusing on instructing indigenous teachers.[121]

Foreign scientists, as well as stakeholders, must be educated to avoid any confusion as to whether proposed research might violate the laws relating to AGR. It should be the responsibility of Brazilian embassies and consulates to target potential bioprospectors and to inform them of the laws and consequences for failing to follow a legal course of research.

There is a common saying in Brazil regarding its legislation: there are those laws that stick and those that do not. On paper, Brazil has some of the most progressive environmental legislation in the world. But in practice, bureaucracy, corruption, lack of resources and an underdeveloped infrastructure have often prevented the country from achieving its environmental aims. A 1999 World Wildlife Fund (WWF) report calculates that Brazil has only 0.4% of its territory protected by federal and state protection agencies.[122]

The Brazlian Amazon is an enormous region sharing borders with seven other countries. Monitoring the entrance and departure of materials from the region is tantamount to locating the proverbial needle in a haystack. A recent government restructuring contributes further to the problem by saddling states with more responsibilities but no increase in resources to accomplish the ends.

If the prevention of illegal logging is difficult, then it is absolutely unfathomable to imagine preventing the removal of genetic resources — a simple leaf with enough genetic information for research purposes can be hidden in a ballpoint pen. André Lima, speaking on behalf of the many frustrated environmentalists, states, "IBAMA can’t control the exit of lumber ... of entire trees ... so we believe that they are not going to be able to control the departure of leaves from a plant."[123]

Most experts in the area agree on this point. The purpose of AGR legislation is not to try to stop every biopirate with a ballpoint pen, but to lessen the risk of biopiracy occurring and to have clear guidelines by which research may be performed and genetic materials may legally leave the country.

It is important to remember, in dealing with all the controversial issues surrounding AGR, that bioprospecting offers many potential benefits to all parties involved, and that bioprospectors are creating a value through their interest in the resources.[124] Bioprospecting creates the potential for sustainable development; local communities can be contracted to collect and catalog tree samples without harming the rich biological diversity. This also allows for an opportunity to promote the preservation of biodiversity and to learn more about the plants before they are wiped out by unsustainable development and forest fires.

Other positive results of bioprospecting agreements include technology transfer, benefit sharing with local communities and an opportunity to preserve the culture and knowledge of peoples who have often been forced to pursue employment in the cities rather than maintaining a cultural existence in their traditional homelands.

Brazil is certainly moving in a positive direction in its efforts to address the issues surrounding AGR. Difficulty arises in attempting to balance the three policy areas touched upon by AGR regulation. If legislation leans too far in the direction of human rights, the result will most likely be a slow-moving, bureaucratic apparatus that discourages following formal procedure to gain access. If the final law is too heavily concentrated on environmental policy, local communities may very well be adversely affected by the mistaken separation of the environment and those who populate it. And if IPR law is not reconciled with conservation aims, the environment and all those living within it will be threatened by foreign control of natural resources.

The states, Acre and Amapá, have correctly approached AGR regulation in an aggressive manner. Their actions should encourage the federal government to accelerate its own efforts at resolving the three outstanding bills.

There is no question that the closer a person is to the source of biopiracy, the more likely he or she will want to see access regulated, in spite of bureaucracy. Moving from the Amazon to Brasilia, where the impact of biopiracy’s negative effects can only be understood in terms of a lost technology transfer opportunity, the issue is often attributed to the "paranoia" of the Amazon’s residents.

In the capital, where industry representatives maintain a constant vigilance to ensure no legislation is passed counter to their interests, hypothetical biopiracy does not carry much weight, particularly when compared to real lost investment opportunities due to what is seen by some as a burdening bureaucratic structure.

Just how discouraging are the bureaucratic requirements for performing research? This is a question that needs to be formally explored. It is necessary to make a study to determine whether Decree 38.830 has really had such a discouraging effect. This study should analyze the number of requests to perform research, the types of research requests, how many were approved, what reasons were given for not approving a project, and similar information. The study should cover an ample period of time, starting before the Decree took effect and continuing up to the present. A comparison with other countries would also be useful. Someone must determine if paperwork is truly a factor in making decisions whether or not to conduct research.

The question remains as to whether the Executive version of AGR legislation will be any less bureaucratic than the Marina or Jacques Wagner versions. The Marina and Wagner bills call for a Genetic Resources Commission composed of government and non-government representatives. The executive version calls for direct administration advised by a deliberative council and by a technical committee, whose composition will be defined by regulation of the law. In either case, the proposed contract will have to pass through a committee. In two bills the committee represents a public interest; in a third bill, priority is given instead to governmental interests. None of the three seem to indicate a faster bureaucratic route than the others. It would be advisable for the supercommittees to have an impartial ombudsman whose role would be to understand the complete picture and to expedite the decisions of the committee.

Much depends on who is involved in the implementation and enforcement of the legislation. Education is fundamental. Citizens at all levels must be aware of the dangers of biopiracy and be able to recognize the warning signs of potential illegal research being performed. It would be wise for legislation to recommend some form of briefing/debriefing strategy for researchers entering and departing the country, guaranteeing that they are aware of the law and are operating within a legal framework. The MCT, through INPq, could have an office dedicated to dealing explicitly with this issue, trained to perform entrance and exit interviews with potential researchers.

Even before this happens, however, embassies and consulates ought to be schooled in AGR policy and should be able to red flag research proposals that could lead to biopiracy. Likewise, public information campaigns aimed at the foreign scientific community would help clear up any misconceptions by those interested in performing research in Brazil.

Policymakers need to determine the role of existing agencies in enforcement and to encourage the creation of webs of communication between agencies at all levels, from municipality to state to federal government. As the primary federal environmental regulatory agency, the Institute of the Environment and Renewable Natural Resources must work with state agencies to coordinate efforts and pinpoint suspected illegal actions.

More problematic is the role of the National Foundation of the Indian. On the one hand, this agency already has an extensive network with indigenous communities, and could be a valuable conduit of information from the local to the national level. On the other hand, distrust of FUNAI runs very deep, and there appear to be no signs of improvement within the agency itself.[125] However, as long as FUNAI continues to function as the federal government’s primary agency for dealing with indigenous manners, it will remain fundamental to include the agency in the implementation process, and to educated FUNAI employees about the new legislation.

Government agencies, fortunately, are not the only institutions involved in AGR issues. More and more NGOs and traditional organizations have arisen in the Amazon region to address the concerns of the native populations. During the past decade, in particular, a full-fledged network has developed, allowing different organizations and research institutes to communicate about vital issues and share information. The Amazon Working Group (GTA), in particular, is a strong network in the region.

It is time for the government to communicate and work with grassroots organizations. The GTA includes a number of incredibly dedicated individuals working closely with the major issues of concern in the Amazon region. These are the people who are likely to know what is best for the area, and it would be prudent for the government to listen to what they have to say. The state and federal governments should find out from the grassroots organizations what materials and tools are needed to perform their work. These organizations are already accustomed to operating on a shoestring budget, and even a modest amount of government aid would result in an efficient use of resources with worthwhile dividends.

No policy or program will ever be successful without the full knowledge and participation of the local communities affected. Regulating access to genetic resources requires a concerted effort by all parties involved to work together in the common interest of protecting the nation’s rich biological and cultural diversity. Failure to act will result in the depletion of natural resources and the erosion of knowledge acquired over generations. No one can benefit once there is no longer an incentive to explore the vast, uncatalogued biodiversity and the traditional knowledge over that biodiversity. With each failure to resolve the issues surrounding AGR, biodiversity and knowledge is permanently lost. It is time to halt the destruction.