Published February 10, 2021
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Traditional Ecological Knowledge and Biological Diversity Act, 2002: A Critical Analysis
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Biodiversity means a variety of living species and it becomes very essential for humanity to survive on this planet. Biodiversity is so important that without it, life is not possible. However, humanity over the last few centuries has depleted almost all biological resources in a manner that it has now become very necessary to conserve them for the survival of the entire ecosystem. On one hand conservation of biodiversity is the need of the hour and on the other hand, its sustainable utilization is also essential for maintaining the livelihoods of the majority of the population. India is a biodiversity hub and so biodiversity-conservation laws play an important role in regulating the access to such resources. However, on the other hand, a majority of India’s population is also dependent on biological or genetic resources for maintaining their livelihood. The utilization of such biological resources in a sustainable manner is also dependent on the traditional knowledge possessed by the local communities transmitted from generation to generation even though not documented. Thus, for sustainable utilization of biological resources, the conservation of such traditional knowledge is also essential. This is the reason why analysis of the Indian Legal Framework regulating the access of biological resources becomes important. This essay will therefore analyze the role played by the Indian Legal Framework in the conservation and protection of biological resources and the associated traditional knowledge in India.
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- State of Nagaland enacted a series of Acts, Rules to conserve and protect the Biodiversity of the Nagaland viz. Nagaland Forest Act, 1968; The Nagaland Rules for the Protection of the Establishment and Control of Forest Villages; 1969, Nagaland Rules for Protection of Forest from Fire, 1961; The Nagaland Jhum Land Act, 1970 etc." Supra note 1. The intellectual roots of traditional ecological knowledge are in ethno-science (mainly ethnobotany) and human ecology. The field started with the documentation of lists of species used by different indigenous groups, and elaborated a science of folk taxonomies of plants and animals, and later, of other environmental features such as soils. Vol. 18, Isabel Ruiz-Mallén& Esteve Corbera, "Community-Based Conservation and Traditional Ecological Knowledge: Implications for Social-Ecological Resilience", Ecology and Society, , No. 4, 2013 -Traditional ecological knowledge has been historically instrumental in ensuring biodiversity conservation and enhancing local livelihoods. Oct. 2020, 18, 9:12 pm. www.jstor.org/stable/26269393. Vol. 87, Robin W. Kimmerer, "Traditional Ecological Knowledge Section", Bulletin of the Ecological Society of America, No. 4, 2006, pp. 312-314. -"It can help to clarify, enhance, and even augment knowledge that is long believed to have been studied exhaustively. TEK offers an integrated system of environment and timing knowledge that adds a dimension where none has been fully examined previously. It is the Indigenous science that puts faces and names in congruence with places and events, and assists in the long-term assessment of what exactly is going on, by looking at long-held trends from the past" Oct. 2020, 22, 3:20 pm. https://blog.ucsusa.org/science-blogger/the-importance-of-traditional-ecological-knowledge-tek-when-examining-climate-change First time the tribal members (as recorded in the blog of Union of concerned Scientists) shared TEK about why the deer in the Western Oregon region were losing hair. Years prior to western scientific information finding an exotic lice species responsible for what is now termed 'Hair Loss Syndrome' Native tribal members identified the very patterns that had been noted and passed them along through a combination of TEK and TK data. Vol. 22(2), Ravi Kant Mishra, "IPR manage of Indigenous Knowledge in Meghalaya: A Need for a Thorough Look", Sri Lanka Journal of International Law, 2010, pp. 69-116. Vol.9, Carl Folke, "Traditional Knowledge in Social-ecological Systems", Ecology and Society, No.3, 2004,. Oct. 2020, 18, 12:45 am. https://www.jstor.org/stable/26267675 Vol. 44, Rajshree Chandra, "Intellectual Property Rights: Excluding other Rights of other Peoples", Economic and Political Weekly, No. 31, 2009, pp.86-93.322qvbfdsdf Vol. 14, Ruifei Tang & Michael C. Gavin, "A Classification of Threats to Traditional Ecological Knowledge and Conservation Responses", Conservation and Society, No. 1 (2016), pp. 57-70. -"For instance, it is a source of biological knowledge and ecological insights. Indigenous knowledge is important for the sustainability of difficult-to-manage ecosystems such as tropical forests." Ravi Kant Mishra, "Protection of Biological Diversity and Environmental concerns in India", in Naveen Kumar (eds), Forest and Environment in India: Law, History, Culture and Modern Approaches, Guwahati, EBH Publishers, 2015, pp. 19-30. -For example, the CBD provides member states with the opportunity to establish regimes that regulate foreign and domestic access to valuable genetic resources and traditional and indigenous knowledge while enabling benefit-sharing mechanisms for such access. CBD Art. 8 j, 10(c) & 18(4). Ravi Kant Mishra, "'Access and benefit Sharing' and the Nagoya Protocol: The Myth and Reality", Chotanagpur Law Journal, 10:10, 2016-17, pp. 151-58 at p.53. Vol. 20 (1), Ian F. Spellerberg, "Biological Diversity", New Zealand Journal of Ecology, 1996, pp. 119-120; -Human activity threatens the very survival of biological entities on which its life depends. K.C. Kim and R.D. Weaver (eds.), Biodiversity and Landscape: A Paradox of Humanity, Cambridge: U.K., Cambridge University Press, 1994. Vol. 13(2), Paul Wapner, "On the Global Dimension of Environmental Challenges", Politics and the Life Sciences, 1994, pp. 173-181. Vol. 34, G. Day, "The Indian as an Ecological Factor in the North- eastern Forest", Ecology, , 1953, pp.329-46. Supra note 13. The Biological Diversity Act, 2002. Ibid. Ibid. -Sec. 2 (d) states that "bio-survey and bio-utilization" means survey or collection of species, subspecies, genes, components and extracts of biological resource for any purpose and includes characterization, inventorisation and bioassay. The objective of the concept of Prior Informed Consent (PIC) is to protect the rights of TEK holders or stake holder by recognizing their bargaining power. Supra note 40 supra note 21 and Supra note 40 Ibid Ibid. Supra note 40. -India is one of the seventeen recognized mega bio diverse countries of the world. The very existence of biodiversity is everywhere in the biosphere. It occurs both on land and in water, from high altitudes to deep ocean trenches and it includes all organisms, from microscopic bacteria to more complex plants. Although many tools and data sources have been developed, biodiversity remains difficult to measure precisely. With only 2.5% of the land area, India already accounts for 7.8% of the global recorded species. Vol. 12, Mimi E. Lam "Building Ecoliteracy with Traditional Ecological Knowledge: Do, Listen, and Learn", Frontiers in Ecology and the Environment, no. 4, 2014, pp. 250–251. Vol. 38, Ajeet Mathur. "Who Owns Traditional Knowledge?" Economic and Political Weekly, no. 42, 2003, pp. 4471–4481. Vol. 52, George W. Wenzel, "Traditional Ecological Knowledge and Inuit: Reflections on TEK Research and Ethics." No. 2, 1999, pp. 113–124; Elisa Morgera (et al.), -"Traditional Knowledge Associated with Genetic Resources." Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-Sharing to the Convention on Biological Diversity, Brill, LEIDEN; BOSTON, 2015, pp. 216–228. MC Mehta v. Union of India & Othrs. AIR 1992 SC 382. PIC includes the right of indigenous and local communities to oppose any access to their resources and associated traditional knowledge to be it for cultural, spiritual, social, economic or other. Vol.19, Joe McCarter(et al.) The Challenges of Maintaining Indigenous Ecological Knowledge. Ecology and Society, no. 3, 2014. Oct. 2020, 22, 10:00 pm. www.jstor.org/stable/26269617 (Note: This article was first published by Aequitas Victoria Foundation in Annual International Journal on Analysis of Contemporary Legal Affairs, Volume 1 2021)