ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017

Access to Biological Resources and Benefit Sharing 1 LAWS OF MALAYSIA Act 795 ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 2 Laws of Malaysia Date of Royal Assent Act 795 ... ... 9 October 2017 Date of publication in the Gazette ... ... ... 17 October 2017 Publisher’s Copyright C PERCETAKAN NASIONAL MALAYSIA BERHAD All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of Percetakan Nasional Malaysia Berhad (Appointed Printer to the Government of Malaysia). Access to Biological Resources and Benefit Sharing 3 LAWS OF MALAYSIA ACT 795 ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 3. Act to be read with other laws 2. 4. 5. 6. Non-application of the Act Interpretation Access to a biological resource Small farmers’ rights Part II AUTHORITIES 7. National Competent Authority 9. Competent Authorities 8. 10. 11. Functions of the National Competent Authority Functions and powers of the Competent Authorities Advisory Committee Part III REQUIREMENTS FOR PERMIT TO ACCESS BIOLOGICAL RESOURCES 12. Application for permit for commercial or potential commercial purpose 14. Permit for commercial or potential commercial purpose not transferable 13. 15. 16. 17. Issue of permit for commercial or potential commercial purpose Application for permit for non-commercial purpose Issue of permit for non-commercial purpose Decision to be informed 4 Laws of Malaysia Section Act 795 18. Circumstances where permit is not required 19. Transfer of biological resource or results of research in relation to biological resource 20. Permit for non-commercial purpose not to be used for commercial purpose 21. Possession, etc., of biological resource and traditional knowledge associated with biological resource 22. Benefit sharing agreement 23. Requirement for prior informed consent and mutually agreed terms, etc. Part IV PERMIT, REGISTER, RECORDS AND DISPOSAL 24. Permit as evidence of compliance 25. Register of permits 26. Records 27. Disposal of biological resource Part V REVOCATION OF PERMITS AND APPEALS 28. Revocation of permit 29. Appeal against revocation of permit Part VI MONITORING AND TRACKING 30. Measures for monitoring and tracking 31. Notification for application of patent Part VII CLEARING HOUSE MECHANISM 32. Establishment of clearing house mechanism 33. Posting and confidential information Access to Biological Resources and Benefit Sharing Part VIII USER MEASURES Section 34. Measures to support laws of other countries Part IX POWERS RELATING TO ENFORCEMENT, SEIZURE, ARREST, ETC. 35. Enforcement officers 36. Power of investigation 37. Authority card 38. Power to enter premises 39. Access to computerized data 40. Seizure of thing, etc. 41. Power to stop, search and seize conveyances 42. Notice of seizure 43. Temporary return of conveyance, etc. 44. Forfeiture of seized biological resource, etc. 45. Property in forfeited biological resource, etc. 46. Release of seized biological resource, etc. 47. Cost of holding seized biological resource, etc. 48. No costs or damages arising from seizure to be recoverable 49. Additional powers Part X GENERAL 50. Payment into fund 51. Compounding of offences 52. Institution of prosecution 53. False declaration 54. Offence committed by body corporate 55. Offence by partner, servant or authorized intermediary 5 6 Laws of Malaysia Section 56. Public servant 57. Protection against suit and legal proceedings 58. Protection of informers 59. Rewards 60. Power to exempt 61. Power to amend Schedules 62. Power to make regulations 63. Transitional provisions First Schedule Second Schedule Act 795 7 Access to Biological Resources and Benefit Sharing LAWS OF MALAYSIA Act 795 ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 An Act to implement the Convention on Biological Diversity and any protocol to the Convention dealing with access to biological resources and traditional knowledge associated with biological resources and the sharing of benefits arising from their utilization and for matters connected therewith. [ ] WHEREAS the Convention on Biological Diversity was opened for signature at Rio De Janeiro, Brazil on 5 June 1992 and entered into force on 29 December 1993; AND WHEREAS Malaysia deposited her instrument of ratification on 24 June 1994 and therefore in accordance with Article 36 of the Convention, the said Convention entered into force as far as Malaysia is concerned on 22 September 1994; AND WHEREAS the Convention on Biological Diversity enjoins Parties to take legislative, administrative or policy measures, as appropriate, to implement the provisions relating to access to genetic resources and the fair and equitable sharing of benefits arising from their commercial and other utilization; NOW THEREFORE, IT IS ENACTED by the Parliament of Malaysia as follows: 8 Laws of Malaysia Act 795 Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Access to Biological Resources and Benefit Sharing Act 2017. (2) Subject to subsection (3), this Act comes into operation on a date to be appointed by the Minister by notification in the Gazette and the Minister may appoint different dates for the coming into operation of different provisions of this Act. (3) This Act comes into operation in the States of Sabah and Sarawak on such date as the Minister may, after consultation with the State Authorities, appoint by notification in the Gazette. Non-application of the Act 2. This Act shall not apply to the specific biological or genetic resource covered by and for the purpose of any specialized instrument on access to biological resources and benefit sharing to which Malaysia is a party. Act to be read with other laws 3. (1) This Act shall be read together with any other written laws relating to access to biological resources and benefit sharing arising from the utilization of the biological resource. (2) The provisions of this Act shall be in addition to, and not in derogation of, the provisions in any other law for the time being in force, relating to forests, wildlife, animals, fishery and international trade in endangered species, except for matters that fall within the provisions of this Act. (3) Nothing in this Act shall be interpreted as restricting the right of a State to take action relating to access to biological resources and benefit sharing arising from their utilization, provided that such action is consistent with the objective and provisions of this Act. Access to Biological Resources and Benefit Sharing 9 Interpretation 4. In this Act, unless the context otherwise requires— “advisory body” means a body comprising representatives of indigenous community and local community established by the Competent Authority under subsection 9(2); “Advisory Committee” means a committee established by the National Competent Authority under section 11; “animal” includes— (a) any mammal (other than man), bird, reptile, amphibian, arthropod, or other vertebrate or invertebrate, whether alive or dead, and the egg, young or immature form derived from them; (b) any readily recognizable part or derivative of an animal; (c) wildlife as defined under the Wildlife Conservation Act 2010 [Act 716]; and (d) fish as defined in the Fisheries Act 1985 [Act 317]; “authorized intermediary” means any person named by the applicant for a permit under section 12 or 15 to take the biological resource or traditional knowledge associated with biological resource on its behalf; “biological resource” includes— (a) the genetic resources, organisms, microorganisms, derivatives and parts of the genetic resources, organisms, microorganisms or derivatives; (b) the populations and any other biotic component of an ecosystem with actual or potential use or value for humanity; and (c) any information relating to paragraphs (a) and (b); 10 Laws of Malaysia Act 795 “clearing house mechanism” means a web-based information portal established by the National Competent Authority under section 32; “Competent Authority” means the Competent Authority as specified in the First Schedule; “Convention” means the Convention on Biological Diversity; “derivative” includes a naturally occurring biochemical compound derived, developed or synthesized, from a biological resource or resulting from the genetic expression or metabolism of the biological or genetic resource, or part, tissue or extract, whether it contains functional units of heredity or otherwise, and information in relation to derivatives; “genetic resource” means any material of plant, animal, microorganism, fungi or other origin that contains functional units of heredity and that has actual or potential value for humanity; “indigenous community” means a group of persons comprising— (a) in the case of Peninsular Malaysia, aborigines as defined in the Aboriginal Peoples Act 1954 [Act 134]; or (b) in the case of Sabah and Sarawak, natives as defined in Clause (6) of Article 161a of the Federal Constitution, and who speak an aboriginal or a native language and habitually follow and embody an aboriginal’s or a native’s traditional way of life, customs and beliefs; “local community” means a group of individuals who have settled together and continuously inherit production processes and culture or a group of individuals settled together in a village or area and under an eco-cultural system; “microorganism” means any organism of microscopic size and parts of organism of microscopic size, including sterile organisms, viruses and viroids; “Minister” means the Minister charged with the responsibility for natural resources and environment; Access to Biological Resources and Benefit Sharing 11 “non-commercial” means for academic purposes or non-profit oriented; “permit” means a permit issued by a Competent Authority under section 13 or 16, as the case may be; “permit holder” means a person holding a permit issued by a Competent Authority under section 13 or 16; “plant” includes— (a) any species of plant or any part of such species whether alive or dead and includes the stem, branch, tuber, bulb, corm, stock, budwood, cutting, layer, slip, sucker, root, leaf, flower, fruit, seed or any other part or product whatsoever of a plant whether severed or attached; and (b) any readily recognizable part or derivative of a plant; “premises” includes any hut, shed, structure, platform, house, building, conveyance and land whether or not enclosed or built upon; “prescribed” means prescribed by regulations made under this Act; “propagating material” means any biological resource material including material of plant or animal origin or any part of the biological resource material, used for multiplication or reproduction; “research and development” includes the study or systematic investigation or technological application by analyzing, sampling, bioassaying and inventorising or other methods for any purpose including taxonomic research, and potential commercial product development; “resource provider” includes— (a) Federal Government, or State Authority, possessing biological resources in in-situ conditions; (b) Federal Government, or State Authority, in respect of ex-situ biological resource, where the resource originates; 12 Laws of Malaysia Act 795 (c) a government department, agency or public higher education institution holding a biological resource in ex-situ conditions, whether in a collection or otherwise, where the origin of the biological resource cannot be ascertained with due diligence; (d) Federal Government or, State Authority, from where the resource is accessed in situations whe