A regulação do acesso aos conhecimentos tradicionais associados a recursos genéticos no Brasil: a experiência do Amapá

Abstract

This work is based on the Convention on Biological Diversity (CBD), which has as main objectives: the conservation of biodiversity; the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the access and utilization of genetic resources. This work deals on the implementation of the discussion of the main safeguard instruments of the rights of peoples and traditional communities, present in the CBD when it comes to arrangements for access and benefit sharing (ABS), analyzing the national regulatory frameworks – Medida Provisória (MP) 2186-16/2001 and Federal Law 13,123/2015. The author has analyzed the Federal Law 13,123/2015 as the major changes introduced and the possible need to establish additional state law and, as confirmed this need, he proposed replacing the State Law 0388/1997, of the Amapá. This analysis was based on two case studies of the State of Amapá: i) Rio Iratapuru Sustainable Development Reserve (RDSI) - first request for access to genetic resources and associated traditional knowledge, authorized by the Managing Council of Genetic Patrimony (CGen) in Brazil, by the cosmetics company Natura, with benefit sharing, for the commercial use of resin of breu branco (Protium pallidum); and ii) Bailique Community Protocol - experience of elaboration of the Protocol by the traditional communities, supported by different institutions - coordinated by the NGO Grupo de Trabalho Amazônico (GTA). With Law 13,123/2015 regulated, it was observed that, in fact, it seems that the ABS regime process in Brazil has been simplified. This is being considered positive for the research to our genetic resources. However, it can also be used by people/unscrupulous companies that can take advantage of this not to share benefits or even practicing biopiracy. However, there are still many doubts if the new law will ensure the fair and equitable sharing of benefits arising from access to genetic resources, as defined in the CBD and the Nagoya Protocol. It is also concluded that states and municipalities will need to supplement federal general law, with its own laws, in order to ensure that areas under their jurisdiction and traditional communities have their rights safeguarded.