- The accumulated knowledge of traditional people is an important source of information about the active principles of Brazilian biodiversity species, the basis for the development of research and products.
- Most of this knowledge, however, remains invisible: 87% of records in SisGen, the national registry of the use of Brazilian Genetic Heritage, do not allow us to know which indigenous or traditional community is behind the knowledge associated with an item of biodiversity.
- The invisibility of these communities is an obstacle for them to have their rights recognized and receive a fair distribution of the benefits arising from the use of this knowledge.
- To solve this problem, Brazil has the Biodiversity Law — which, according to experts, guarantees the rights of communities — and the proposal for a Database of our Genetic Heritage.
Imagine the scene. We are at the end of the Second Empire, when envoys from the Kew Botanical Gardens, in London, arrive in Brazil. They have a mission to accomplish: collect samples of rubber trees, one of the natural wonders of the Amazon that the world at the time had heard about.
Without prior authorization from Brazilian authorities, they return home with dozens of kilos of seeds, create seedlings on English soil and plant vast rubber plantations in the colonies of Southeast Asia. What happened: at the beginning of the 20th century, England became the largest rubber producer in the world. As a result, extractive activity collapses in the Amazon, causing an economic crisis.
The story is told with verve by Bráulio Dias, former professor of Ecology at the University of Brasília — and current director of Biodiversity at the Ministry of the Environment —, in a course available on YouTube, “Good Practices for Research that Accesses Genetic Heritage and Traditional Knowledge Associate” – a kind of beabá about what can or cannot be done with our natural resources.
Exactly, “good practices”, since even today scientists of all origins, including Brazilians, barely know the intricacies of Federal Law No. 13,123/2015, known as the Biodiversity Law .
“The environment is a public good, which must be protected in a shared way between the Union and entities interested in exploring it”, emphasizes Bráulio Dias in the aforementioned course. “Brazilian nature is not mother Joana’s home.”
The catchphrase, when recalled during an interview, makes the MMA director smile, but for a short time. “Since colonial times, when Europeans took our cocoa to be cultivated in Africa and Asia, we have experienced an asymmetry in international trade”, he notes. And it goes further: “It turns out that the asymmetry continues, because rich countries and their companies understand that it is possible to take the best natural resources in the rest of the world, appropriating all the economic benefits.
This is perhaps one of the most complex management problems in Marina Silva's ministry. Experts say that the Brazilian Biodiversity Law is sufficiently equipped to be put into practice, but actions are lacking.
Brazil is the country with the greatest biodiversity in the world, around 20% of what exists on Earth. Our numbers speak for themselves: more than 100,000 species of fauna, almost 50,000 of flora (among them, 140 Amazonian varieties “domesticated” by indigenous people) and an economic asset capable of increasing the national GDP by around US$53 billion per year. year in two decades, only counting on the contribution of industrial biotechnology.
Therefore, we understand foreign greed for what thrives in our forests. Another estimate, also published on the Vitrine da Biodiversidade Brasileira (VBIO) website — an online platform that helps raise and allocate resources for ecological projects — calculates Brazil's annual loss from biopiracy at US$5 billion.
The invisibility of traditional communities
The course on good practices in accessing and using our biodiversity was the work of Instituto Escolhas (SP), the same organization that proposed a Brazilian Genetic Heritage Database. The proposal presented to the Ministry of the Environment, and still pending approval, consists of an online tool that allows monitoring the research records of our biodiversity, facilitating the exchange of information between researchers, the government and holders of traditional knowledge.
For Jaqueline Ferreira, portfolio manager at Instituto Escolhas, the Database emerged to overcome one of the deficiencies of the legal framework, “that of the non-identification of genetic heritage associated with traditional knowledge”.
Imagine research that goes after a component x, present in plant y, only found in biome z in Brazil. Maybe it will result in cosmetics or food, maybe not. Scientific uncertainties aside, this is research and development that uses native biodiversity, more specifically Genetic Heritage (PG), hence the requirement for registration in SisGen , the National System for Management of Genetic Heritage and Associated Traditional Knowledge.
According to a survey by Escolhas , around 87% of records in SisGen indicate Genetic Heritage without reference to the Traditional Knowledge Associated with it (CTA). In other words, it is impossible to know which indigenous people or traditional community has been using a certain item of our biodiversity.
“How is it possible to suggest the possibility of use, without giving its origin? ”, says Jaqueline. “Did this knowledge fall from the sky? ”
“The main premise of Brazilian legislation is traceability”, points out lawyer Luiz Marinello, one of the experts on legal aspects of the bioeconomy in Brazil. “The Government wants to know where our biodiversity species are being used, how and where they are going.”
The rule applies to both individual researchers and those working in the industry. However, if the use of Genetic Heritage results in cosmetics, for example, there will be another obligation to comply with. “One year after the product is sold, the industry will have to calculate the net income from the sale to be shared”, details the lawyer. Having the calculation basis already determined for sharing benefits on access and use of biodiversity is unique to Brazilian law.
It was in 2014 that the Nagoya Protocol, signed in 2010, became effective with the function of implementing the guidelines of the Convention on Biological Diversity , which, at ECO-92, innovated by indicating the need to share benefits arising from the use of Heritage Genetics with knowledge holders. Brazil signed the protocol in 1994, but it was only in 2021 that Congress ratified it and it came into force.
The protocol also provided for two ways of sharing these benefits: monetary and non-monetary. And here our legislation presents another particularity, the creation of the National Benefit Sharing Fund. Thus, following the calculation defined by law, if the company chooses monetary distribution, it must deposit 1% of net income into the fund, an operation repeated annually. In the case of non-monetary, you will invest 0.75% in a sustainable project of your choice.
And the story continues, as rich in possibilities as our nature. Imagine, now, that the research uses Genetic Heritage associated with traditional knowledge – for example, babassu oil obtained using techniques from a traditional community and included in the composition of a beauty cream.
In this case, the researcher will have to ask the knowledge holder for permission to start the work, in addition to registering with SisGen. “The first step will be to talk to local leadership and negotiate the access contract”, confirms Luiz Marinello.
Would the Database proposed by Instituto Escolhas be of any use at this stage of the process? “With just one click, it shows the path to the researcher, pointing out the communities associated with knowledge”, says Jaqueline. Yes, as there are cases in which the same Associated Traditional Knowledge is the domain of different communities, increasing the complexity of the transaction.
Companies adopt direct negotiation
The Biodiversity Law also allows negotiation to take place directly between the parties – exactly the choice that guides the exploitation of our natural resources by the cosmetics giant, Natura, present in 48 communities, 41 of them in the Amazon.
“We don’t want to negotiate with intermediaries, but with communities. Negotiations can last up to two years”, reveals Mauro Costa, Natura’s supply manager.
In Middle Juruá, in the Amazon, Natura has negotiated the use of Genetic Heritage associated with traditional knowledge with local cooperatives, “so that the sharing of benefits is directed to the communities, valuing their ways of life”, highlights Priscilla Matta, manager of the company's sustainability.
The purchase of raw materials happens in another way. “We follow the principles of ethical biocommerce, there is no requirement to share benefits”, says Mauro. In other words, the legislation does not regulate the purchase of raw materials; trade is agreed between the parties involved: company and producer. No registration with SisGen is required.
These are scenarios with different contracts – and not everyone is satisfied. “It is a fragile situation, as it is not in the community’s interest to come into conflict with those who buy the production that is a source of survival”, assesses Jaqueline.
Another problem: the lack of preparation of the community leadership to deal with the big businessman and find a reasonable agreement, even regarding the sale of the harvest. “Most traditional communities do not have legal support to defend their interests”, recognizes Bráulio Dias, pointing out one of the bottlenecks that is difficult for the MMA to manage.
“[The] Nagoya Protocol encourages the creation of community protocols, as it is necessary for communities, indigenous or not, to discuss these issues and establish rules”, says Bráulio, adding that the Brazilian Biodiversity Law – which, in his view, does not require adjustments – it follows what is determined internationally. But, when asked for a good example already adopted, he just smiles.
It is really complicated not only to understand but also to satisfy interests as diverse as those of the negotiation that brings together science and industry, government and the local community. In the midst of the impasse, there are those who behave separately, such as Centroflora.
It is another colossus, now in the industrial sector (pharmaceutical chemistry), producing IFA (Active Pharmaceutical Ingredient) with Brazilian Genetic Heritage. And this is how it has stood out for decades with projects like jaborandi: it is from its dried leaf that the company extracts the active ingredient pilocarpine, used in the treatment of glaucoma and presbyopia.
With farms in the North and Northeast, Centroflora acquires raw materials and negotiates with collector cooperatives. And, as it is an intermediary (it sells IFA to pharmaceutical companies, for example), it only registers with SisGen, avoiding sharing the benefits of product sales. In practice, however, something else happens.
“The founders are Danish, so the vocation of sharing benefits is in the company’s DNA”, says Cristina Ropke, innovation director at Centroflora, proudly. This happens through programs such as “Partnerships for a Better World”, ongoing since 2003 – therefore, prior to the Biodiversity Law –, which seeks to transform the daily lives of collectors (30 thousand families) by encouraging family farming or transmitting sustainable management techniques.
Cristina, who is a biochemical pharmacist, has the same opinion as Bráulio Dias about the Biodiversity Law. “It is being improved step by step. SisGen still has to improve, but there is legal certainty today and that is good”.
Community models
Luís Carraza, executive secretary of the Cooperativa Central do Cerrado , thinks differently. “It is a confusing law, which imposes demands and does not indicate the way forward.” He explains: “While it protects the community's right to have income from the sharing of benefits, it scares away companies that do not have a structured legal department. She feels insecure and gives up on the negotiation.”
Created in 2004, the Central Cerrado Cooperative, with 23 affiliates, proves that deep Brazil demands to be heard (and respected) about the riches of its territories. “It arose from the requirement to come together to carry out collective trade, exploring a single structure to sell baru, buriti and pequi, for example, following the ethical procedure of biodiversity conservation”, summarizes Luís Carraza.
One of its associates is Cooperativa Grande Sertão , in Montes Claros, in the semi-arid region of Minas Gerais. Among the products it sells, buriti oil stands out, which Natura fractionates and refines and then uses in the production of cosmetics.
“Our community’s work is based on traditional knowledge accumulated over generations”, highlights José Fábio Soares, the cooperative’s technical manager. “It is by removing the fruit pulp, placed in the sun to dry, that the oil is made – the 'buriti zest', as they say here”.
From the preferred customer, in fact, there is only praise. “We had difficulty understanding the distribution of benefits, but Natura explained the legislation, which was valuable for us”, he recalls. “We” today concerns 2 thousand families, spread across 35 municipalities, united around an ideal: the conservation of the Cerrado and Caatinga in the fight against deforestation.
“Using large tracts of land for charcoal production puts the survival of native species and families linked to the traditional activity at risk”, warns José Fábio.
It is a way of acting and thinking that supports what the legal indicators say, which, Marinello recalls, “prove that, where there are traditional communities and indigenous peoples, the forests are better preserved. There is an umbilical relationship between these people and the forest.”
The lawyer, a staunch defender of current legislation, agrees on the urgency of the actions. “For example, there is a lack of training, making the law more effective so that traditional peoples and communities know the rights they have in their hands. ”
But the Biodiversity Law has, in his opinion, a cutting-edge touch when it includes in silico access , made from digital sources or sequences. Because the most technologically advanced industries, for some time now, no longer need physical samples to access biodiversity, using only one piece of information for the sample to be created in the laboratory.
There is nothing more current – and controversial – than the access and use of digital sequences (or DSI, an acronym in English for Digital Sequence Information ) of natural resources. Hence the question that heated up the atmosphere at COP 15, in Montreal, in 2022: after all, should DSI be regulated in a specific way or not?
In the end, the understanding prevailed that the Nagoya Protocol also concerns digital sequences. In other words: respecting the sharing of benefits, the proposal is to create an open system of access to information about biodiversity that already circulates online. It will be free, but already including internal control by each country over who is using the Genetic Heritage related to its natural resources.
“Once the calculation is made, thanks to databases around the world, the idea is to deposit a value to be determined in a fund to then distribute among the countries involved”, says Luiz Marinello. The discussion is still ongoing, but everything indicates that the days of the Nagoya Protocol are numbered. “It will be replaced by a multilateral benefit-sharing system. It is the future of access and use of biodiversity announcing itself in an intelligent way.”