By Lim Jo Yan and Liow Pei Xia
A bill on Access to Biological Resources and Benefit Sharing of Malaysia is expected to be tabled in Parliament in 2014 (“Bill”). Given that Malaysia is recognised as one of the 12 Mega Biodiversity countries in the world, it is crucial that a national law exists to regulate bio-prospecting activities, in particular research and development activities with commercial and potential commercial purpose. Below is a brief summary and our observations of the current draft of the Bill.
The Bill focuses on the “access to biological resources” (“ABR”) which is defined in Section 5(1) of the Bill to mean “the taking of biological resources from their natural habitat or place where they are found, kept or grown for research and development”. The draft law goes on to say in Section 5(2) that “a person is said to have ABR if there is reasonable prospect that biological resources taken by the person will be subject to research and development”. The regulation of ABR may be divided into access for commercial or potential commercial purposes and access for non-commercial purposes.
Access for Commercial or Potential Commercial Purposes
Section 13 of the Bill imposes a requirement for a permit for those who intend to access biological resources for commercial or potential commercial purposes. An application for a permit shall be made to the Competent Authority (i.e. Ministry of Natural Resources and Environment), whom will in turn decide on the issuance of a permit. The Competent Authority shall refuse to issue a permit to an applicant under Section 14 of the draft Bill in certain enumerate circumstances such as when the application relates to, amongst others, threatened taxa, the adverse effect on the livelihood of indigenous or local communities and purposes contrary to ethical values.
Access for Non-Commercial Purposes
Similiar to the Access for Commercial or Potential Commercial Purposes, Section 15 provides that any person who intends to access biological resource for non-commercial research purposes shall apply for a permit. The research shall be in collaboration with a public higher institution, public research institution or government agency, unless otherwise decided by the Competent Authority. The issuance of a permit may not be granted as per Section 14 of the draft Bill or if the Competent Authority is satisfied that the application is for commercial or potential commercial purpose.
Penalty for Access without Permit
The penalty for access without permit is relatively high as an individual in violation of this is punishable to a fine not less than RM50,000 and not more than RM200,000 and/or to imprisonment for a term not exceeding 5 years. A body corporate on the other hand shall be subjected to a fine not less than RM100,000 and not more than RM400,000.
Benefit Sharing Agreement
A Benefit Sharing Agreement shall be entered into between the resource provider and an applicant for permit for ABR for commercial or potential commercial purposes (“Applicant”). The terms of the agreement shall be mutually agreed between parties hence it is important to ensure that the agreed terms are fair and have equitable benefit sharing. An Applicant may be compelled by the Competent Authority, if not the resource provider, to pay a percentage of any monetary benefits derived under the benefit sharing agreement to a fund as may be established by the Federal or State Government.
Administration of Permits
The draft Bill provides for the National Competent Authority to establish measures for the purposes of monitoring the biological resources accessed, including establishing checkpoints and requiring the production of permits at such checkpoints. The Competent Authority shall establish a clearing house mechanism as a means of sharing information including that related to access and benefit sharing. A copy of all permits shall be posted on the webpage of the clearing house mechanism unless such information is classified as confidential.
To ensure the efficacy of the law, the Competent Authority is conferred with a wide array of powers in the enforcement of the draft law. These powers include, amongst others, powers of investigations, powers of arrest, search and seizure with or without warrant, powers to enter premises, access to computerised data and forfeiture of seized biological resources.
If passed in Parliament, the Bill marks the commencement of a crackdown on the existing rampant illegal harvesting on biological resources. The drafters of the Bill intend for the draft law to overcome biological resource thefts to ensure the conservation and sustainable use of biological diversity. The effectiveness of the draft law remains unseen until the official rollout of the draft law. Thus, the Competent Authority plays an imperative role in enforcing the provisions of the draft law in accordance with the spirit of the law as envisaged by the drafters and Parliament.