Despite the absence of national access and benefit sharing (ABS) laws in Canada, there is still an opportunity to strengthen ABS among the Canadian farming community. The international framework surrounding ABS is defined by agreements including the The International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA), Convention on Biological Diversity (CBD) and the Nagoya Protocol (NP). Of these, ITPGRFA directly recognizes the importance of protecting farmer’s rights. Canada is a party to both CBD and ITPGRFA but not the Nagoya Protocol, which is the instrument for implementing the access of traditional knowledge in relation to plant and genetic resources for food and agriculture. ITPGRFA is recognized as a specialized instrument under Art 4(4) of the Nagoya Protocol. So currently, there are gaps in the national legal framework for implementing international ABS law in the national law. Yet, ABS practices can be enhanced among Canadian farmers even without formal ABS legislation.
In fact, even when ABS is integrated into national laws, implementing these mechanisms can be problematic in ensuring that farmers receive the intended benefits. In India, for instance, both plant breeders and farmers receive IP protection for newly developed crop varieties under the Indian Protection of Plant Varieties and Farmer’s Rights Act. Farmers can save, use, exchange, and sell seeds except those protected under a brand. However, these rights have been difficult to implement.
The formal ABS system can be too theoretical, bureaucratic and ultimately inaccessible to local farming communities. Rural farmers are sometimes not aware of the protection available under domestic laws. The legal requirements and the process can be complicated for uneducated farmers to understand. As a result, ABS may not be within the reach of all farmers. In addition, crops are sometimes developed collectively in communities. Therefore, attributing IP rights to one farmer over another can undermine the process that led to the creation of the plant variety. A standard nationwide IP model for protecting farmers’ rights may not always be effective.
As a way to facilitate ABS among farmers, ABS can be designed through collaborative efforts based on knowledge and needs of local communities. Farmer-led seeds banks offer a way to approach ABS on a grassroots level even in the absence of national laws. The seed banks can help preserve traditional and region specific seed varieties while helping preserve biodiversity. They also encourage farmers to develop, collect, exchange, sell and produce seeds. In addition, local community organizations can play a role in helping communities construct new seed banks. Another approach called Participatory Plant Breeding can also help promote ABS by engaging farmers, researchers, and breeders through collaborative practices.
Since the success of ABS may not depend exclusively on national laws, informal benefit sharing presents an alternative approach to government regulated ABS. Seed banks and Participatory Plant Breeding practices can be informally developed and strengthened by designing them in partnership with Canadian farmers. Unlike India, where a majority of the workforce is employed in the agricultural sector, the agricultural sector employs only a small portion of Canadian population. Yet, the incentive to invest in farmer-focused ABS mechanisms is just as important in Canada. Not only is this crucial to help protect Canadian plant biodiversity but it also encourages farmers to contribute to the preservation of genetic resources.