Table of Contents

  • Continued flexible exchange of forest genetic resources (FGR) in the Nordic region is important for sustainable forest management and for climate change adaptation and mitigation. For this reason, a high level political initiative identified a need to clarify the legal status of FGR in the Nordic region. The overall aim of this study was to assess whether it is necessary and possible to take legal steps to ensure that FGR remain available for conservation and sustainable use in and between the Nordic countries. A survey of the present situation revealed that although the Nordic countries have different domestic legislation on access to FGR, it has not caused any hinders for exchange. Thus, in effect the situation is quite similar in the Nordic countries. As for the future, it is unlikely that application of patent law and plant variety protection (UPOV) will restrict exchange of FGR, mainly due to the short protection periods of these regulations relative to the long generation time of main forestry tree species. For short rotation tree species, intellectual property rights (IPR) might prove to be more applicable. Concerning international agreements, it is premature to evaluate the effect of the Nagoya Protocol (2010) on access and benefit sharing for FGR, as well as recent FAO initiatives. Based on the current study, no legal steps or action seem necessary. To promote continuing simple exchange of FGR the Nordic countries are recommended to stay involved in those processes where relevant international agreements are debated and developed, facilitate simple procedures for exchange and establish a mechanism for surveillance of biotechnological methods that might increase the use of private property rights on FGR.

  • The Convention on Biological Diversity (CBD) was adopted in 1992 and it is the main international framework for conservation of biodiversity. The CBD strengthened the political recognition of genetic resources as an invariable component of biological diversity. It also established legally binding obligations on access to genetic resources, as well as to fair and equitable sharing of the benefits arising (ABS) from the utilisation of genetic resources.

  • Trees differ from crop plants in many respects. The rotation time of forest trees is very long in the Nordic region, 60 to 100 years for several commercial species. As a consequence of their size and great reproductive capacity, the gene flow is also extensive. European aspen (Populus tremula) is a good example: a single tree may produce up to 80 million seeds annually. Related to the pronounced gene flow, most forest tree species also exhibit high genetic diversity as compared to other organisms. Another special characteristic is that when forest trees are planted, the next generation may be naturally regenerated from the planted material – contrary to plant varieties in agriculture where new seed are mostly used every year. This might imply that it is valuable to keep a high diversity also in the planted forests as they may be naturally regenerated in the future.

  • The CBD is the most significant international agreement pertaining to biological material, including FGR. The background for regulating the access to genetic resources as part of the CBD was to establish a mechanism for sharing benefits arising from the commercial and other use of genetic resources. The CBD recognizes that countries have the sovereign rights over their genetic resources. This implies the competence to regulate and set conditions for the use of genetic material from one country under the jurisdiction of another country. Access and benefit sharing (ABS) is mainly an international mechanism. The access to and utilisation of genetic material from one country in another country shall be regulated by a permit (prior informed consent) and a private law agreement (mutually agreed terms) which sets out the conditions for fair and equitable sharing of the benefits arising from such use.

  • Ownership to genetic resources rests on two principles rights; access to the land where the biological material (e.g. forest trees) is located, and the legal rights to the genetic resources per se – whether it follows ownership to the biological material or not.

  • The Nagoya Protocol (2010) is an international agreement to implement the legally binding regulation of access and benefit sharing of the CBD. Thus, the Nagoya Protocol is a supplement to the Bonn guidelines (2002) which are not legally binding. Even though FGR has not been a central topic in the debates, there are no particular rules that would exempt forest tree genetic resources from the scope of the Nagoya Protocol. The Protocol was initially intended to dealing mainly with legislation in user countries, but it covers both rules on access and on benefit sharing.

  • The Nordic countries have different domestic legislation for regulation of access to genetic resources (e.g. the Every man’s right), but to the present day these differences have not caused any hinders for exchange and access to FGR