The South African ABS Regime: New Wine in Old Wine Skins?

Abstract

AbstractAccess to biological and genetic resources and associated traditional knowledge in South Africa for bioprospecting and export for research other than bioprospecting is regulated by a number of legislations. The key among them is the National Environmental Management: Biodiversity Act No. 10 of 2004 referred to as NEMBA and the regulations thereto. Significant revisions for access and benefit-sharing (ABS) were done in NEMBA in 2009 and 2013. Besides, the regulations thereto of 2008 were repealed with the coming into force of the new amended version of 2015. Thus, the pre-Nagoya Protocol ABS legislations have been revised after the adoption as well as entry into force of the Protocol. Although South African experts say the revisions were not an action of compliance with the Protocol, several of the revisions nevertheless produce the necessary effect for compliance e.g. by creating legal certainty and transparency and facilitating access. On the other hand, a number of them create new challenges, e.g., the too many scattered amendments can easily go unnoticed by a party interested in accessing resources and/or associated traditional knowledge. In addition, this makes it hard even for a lawyer to understand the regime without difficulty. The guidelines of 2012 have long been overtaken by the new changes and at times are contradictory to these changes. In describing the ABS instruments, approaches and exploring their innovativeness, this chapter examines how the amendments fit into the old regime in view of checking whether conformity with the Nagoya Protocol is achieved and how the different unresolved issues in the Protocol are dealt with either by law or practice. Further, it is examined what new challenges the regime presents and antidotes suggested.KeywordsSouth African ABS regimeBioprospectingNEMBABABS regulationsAccess and benefit-sharing