1.National Biodiversity Authority to prosecute Mahyco/Monsanto and collaborators
2.'Development of Bt brinjal a case of bio-piracy'
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1.National Biodiversity Authority to prosecute Mahyco/Monsanto and collaborators for promoting Bt Brinjal in violation of Biodiversity Protection Law
ESG India, 11 August 2011 
http://www.esgindia.org

In an unprecedented, though much delayed, decision, the National Biodiversity Authority of India (NBA) has decided to initiate legal action against M/s Mahyco/Monsanto and their collaborators for accessing and using local brinjal varieties in developing Bt Brinjal without prior approval of the competent authorities. The official resolution giving effect to this decision was taken in the NBA's meeting of 20th June 2011, the minutes of which were released only on 11 August 2011. 
http://www.nbaindia.org/meetings/meeting.htm

The decision of the NBA reads as follows:

"A background note besides legal opinion on Bt brinjal on the alleged violation by the M/s. Mahyco/M/s Monsanto, and their collaborators for accessing and using the local brinjal varieties for development of Bt brinjal with out prior approval of the competent authorities was discussed and it was decided that the NBA may proceed legally against M/s. Mahyco/ M/s Monsanto, and all others concerned to take the issue to its logical conclusion." (Emphasis supplied) 

(Official copy of these minutes may be accessed here: http://www.nbaindia.org/meetings/meeting.htm )

The "alleged violation" referred to by NBA is based on a complaint filed by Environment Support Group before the Karnataka Biodiversity Board on 15 February 2011 (copy attached). Subsequently, the Board thoroughly and systematically investigated the matter and submitted in its 28 May 2011 letter to NBA that “six local varieties for development of Bt Brinjal” have been accessed in Karnataka by M/s Mahyco/Monsanto and their collaborators “without prior approval from State Biodiversity Board/National Biodiversity Authority”. Furnishing a variety of documents in support of its contention, the Board has sought “further action” by the Authority on the basis of ESG's complaint. (Emphasis supplied). 

NBA subsequently sought "legal opinion” and decided to "proceed legally” against all involved in this case of biopiracy and "take the issue to its logical conclusion”. This should involve, as per law the Biological Diversity Act, initiation of criminal prosecution of key representatives of M/s Mahyco/Monsanto, University of Agricultural Sciences-Dharwar, Tamil Nadu Agricultural University-Coimbatore, Sathguru Management Consultants Pvt. Ltd. (representing the consortium involving United States Agency for International Development and Cornell University-USA) and others for fundamentally violating Sec. 4 and related provisions of the Biological Diverstiy Act. 

ESG's complaint specifically charges these agencies for criminally accessing at least 10 varieties of brinjal in Karnataka and Tamil Nadu without in any manner seeking prior and informed consent from the National Biodiversity Authority, State Biodiversity Boards and applicable Local Biodiversity Management Committees as required. Such a rigorous process of appraisal is mandatory to protect loss of biodiversity due to misuse or overuse, theft of biodiversity and to secure biodiversity from contamination when transgencis are involved. In addition, the law mandates that when biodiversity is to be accessed in any manner for commercial, research and other uses, local communities who have protected local varieties and cultivars for generations must be consulted and if they consent benefits must accrue to them per the internationally applicable Access and Benefit Sharing Protocol. 

Clearly aware of these laws that were fully in operation when Monsanto and its collaborators initiated research in developing Bt Brinjal in 2005, they deliberately chose to sidestep conformance with this critical legislation. When tackled by the Board during the investigation, Mahyco in its letter dated 25 June 2010 to the Board has categorically stated that it is "not in violation of any of the provisions of the Act" and claimed that the Bt Brinjal was developed by University of Agricultural Sciences, Dharwad. On its part the University has claimed in its letter dated 17 May 2011 that it has secured all permissions from various government departments, but does not produce any evidence of clearance under the Biodiversity Act. The extent to which Monsanto is dismissive of India's biodiversity protection laws is evident from a press release made by Dr. Usha Barwale Zehr, Joint Director, Research of Mahyco who claimed that “The Genetic Engineering Action Committee (GEAC), whic
h is
going to meet a 19 member Expert Panel on April 27, 2011, may accept the proposal for introduction of Bt Brinjal in the country.”1 Thus completely belittling biodiversity protection laws of India in which offences are cognisable and non-bailable. (A copy of the Act may be accessed here.)

Keeping all this in view, the NBA must work with the State Biodiversity Boards to initiate criminal proceedings against Mahyco/Monsanto and others in strict conformance with the law. Pending this process, NBA must suspend action on all applications by any of the agencies so involved in biopiracy seeking access to any biological resource of India. This would imply that NBA must stop processing Monsanto's application for accessing two varieties of Indian onions. In addition we demand that NBA and its supportive regulatory agencies such as the State Biodiversity Boards and Biodiversity Management Committees must immediately ramp up their capacities to ensure that such acts of biopiracy become a thing of the past.

Leo F. Saldanha 
Bhargavi S. Rao
Environment Support Group
http://www.esgindia.org/about-us/contact-us.html

PS:  All documents mentioned in this Release will be accessible at www.esgindia.org shortly.

Background to the issue

The environmental release of the first ever Genetically Modified Food (Bt Brinjal eggplant) in India, promoted by M/s Mahyco (an Indian subsidiary of US TNC Monsanto), was stayed by a February 2011 moratorium decision on the product's environmental and commercial release by then Indian Environment Minister Jairam Ramesh. This decision was the outcome of public opinion gathered in a series of nation-wide public consultations that he held and was also based on a variety of scientific evidence and legal analysis. Fundamentally, Mr. Ramesh held that per the Precautionary Principle, not enough was known of the environmental, public health, economic and social consequences of GMO foods and, therefore, it was prudent to postpone the decision until there was absolute certainty that GMOs subserved the common good.

Moratorium decision on Bt Brinjal sidestepped biopiracy issue:

In the Bangalore public consultation held by Jairam Ramesh on 6th February 2010, Environment Support Group had brought to the attention of the Minister that fact that in promoting Bt Brinjal Mahyco/Monsanto and its collaborators had criminally accessed at 10 local varieties of brinjal without any prior permission from the National Biodiversity Authority (NBA), State Biodiversity Board and Local Biodiversity Management Committees as required per the Convention on Biological Diversity, 1992 and the Biological Diversity Act, 2002. Therefore, the action of bringing the Bt Brinjal product to a final decision of commercial release constituted an act of biopiracy: a very serious crime that is cognisable, non-bailable and additionally involves large fines. It was also submitted to the Minister that such actions seriously compromised and denied economic and social benefits to local communities under the Access and Benefit Sharing Regime. 

Mr. Ramesh chose to sidestep this critical issue while imposing a moratorium on the environmental and commercial release of Bt Brinjal. 

Monsanto now wants India's onions:

Monsanto Holdings Pvt Ltd has now applied for accessing a variety of onions grown in India for potential hybridisation, commodification and commercial release. A copy of the application made by Monsanto is enclosed. As we understand, NBA has forwarded Monsanto's application to relevant State regulatory authorities and applicable Biodiversity Management Committees (at Panchayat/Nagarpalika levels) with the direction that the application be cleared no later than 27 August 2011. 

It is imperative for NBA to enforce India's biodiversity protection laws and also act in conformance with the Public Trust Doctrine, Precautionary Principle, Principle of Intergenerational Equity and the Polluter Pays Principle and other applicable laws. We fear that weak implementation of these laws encourages Indian and foreign companies and research organisations to continue their business-as-usual approach untrammelled by any fear of punitive action from regulatory institutions. Needless to state, such failures comprehensively compromise India's sovereign control over its biological resources.

1GEAC to decide on Bt Brinjal at April 27 meet with Expert Panel, Friday, April 22, 2011 by Manjushee Naik, Mumbai, FnBNews, accessible at: http://fnbnews.com/article/detnews.asp?articleid=2970§ionid=1 
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2.'Development of Bt brinjal a case of bio-piracy'
The Hindu, August 10 2011
http://www.thehindu.com/todays-paper/article2341585.ece

The development of Bt brinjal was a case of bio-piracy, according to the National Biodiversity Authority (NBA). According to sources, the NBA has finally concluded its year-long investigation and recommended action against the U.S. agri-business giant Monsanto and its Indian collaborators who developed and promoted the controversial, genetically modified vegetable.

A decision to "take the case to its logical conclusion" was taken at an NBA meeting on June 20, according to official sources, who say this means Monsanto & Co. could face criminal proceedings. When the NBA met on Tuesday, it discussed "comprehensive evidence" and "supporting proof” gathered against Bt brinjal's promoters, say sources.

"The NBA is now continuously moving forward in that direction," said a senior official who refused to speculate on how long the process will take.

The charge against Bt brinjal's developers which include Monsanto's Indian partner Mahyco as well as Indian universities and research organisations is that they allegedly accessed nine Indian varieties of brinjal to develop their genetically modified vegetable without prior permission from the NBA or the relevant State and local boards.

This is a violation of the Biological Diversity Act, 2002, according to the Environmental Support Group (ESG) which lodged the formal complaint with the Karnataka Biodiversity Board on February 15, 2010, soon after the Government put a moratorium on Bt brinjal on health and safety grounds.

ESG points out that by using the local brinjal varieties without permission, Monsanto & Co compromised "India's sovereign control over its biological resources" and also "denied economic and social benefits to local communities under the Access and Benefit Sharing Regime". Bio-piracy, it adds, is a cognisable, non-bailable crime with severe financial penalties as well.

Monsanto has denied violating bio-diversity protection laws, while the University of Agricultural Sciences, Dharwar, claims that the law does not apply to them as they are a publically funded company. The NBA has been responsible for the investigation since June 2010.

Meanwhile, Monsanto applied to the NBA on June 27 to access two varieties of Indian onions for potential hybridisation. While the NBA originally forwarded the application to relevant authorities, it is not clear if that process will be affected by the bio-piracy case now reaching a conclusion.