How many sections does ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 have?

ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 contains 65 sections.

ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 (No. 795)

Q: Is ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 still in force?

Yes — ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 is currently in force.

Q: Where can I read the official version of ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017?

The official text of ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017 is published at lom.agc.gov.my.

PRELIMINARY

Short title and commencement

Section 1

(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

Section 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.

Section 3

Act to be read with other laws

(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

Section 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);

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“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;

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“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;

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(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 where—

(i)

the biological resource is held in ex-situ conditions by a private body; or

(ii)

the biological resource is taken from private land;

and

(iii)

the origin of the biological resource cannot be ascertained with due diligence.

(a)

in relation to an animal, to harvest, catch, capture, trap and kill or obtain in any other way;

(b)

in relation to a plant specimen, to collect, harvest, pick, gather and cut or obtain in any other way;

Access to Biological Resources and Benefit Sharing 13

(c)

in relation to other biological resources including microorganisms, to collect, pick or obtain in any other way; or

(d)

to obtain a biological resource in any other way;

“threatened taxa” means critically endangered, endangered or vulnerable species as listed respectively in Appendices I, II and

III of the Third Schedule of the International Trade in Endangered

Species Act 2008 [Act 686].

Access to a biological resource

(e)

the indigenous community and local community, where the resource is on land to which they have a right as established by law;

(f)

the indigenous community and local community, where they are the holders of the traditional knowledge associated with a biological resource including members of the community who are traditional healers; or

(g)

an individual, where the biological resource is taken from the body of that individual;

“State Authority” means the state authority of the relevant state in Malaysia and in the case of Federal Territories, the Minister for the Federal Government charged with the responsibility for

Federal Territories;

“take” includes—

Section 5

(a)

the taking of a biological resource from its natural habitat or place where it is kept, grown or found including in the market for the purpose of research and development;

or

(b)

there is a reasonable prospect as determined by the

Competent Authority that a biological resource taken by the person will be subject to research and development.

(2)

Access to a biological resource shall not include the following activities:

(a)

fishing for commerce, recreation or game;

(b)

taking animals or plants for food;

(c)

taking biological resource that has been cultivated or tended for any purpose other than the purpose of research and development;

(d)

taking natural produce including oils and honey for any purpose other than the purpose of research and development;

(e)

collecting plant reproductive material for propagation;

(f)

carrying out commercial forestry;

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(g)

in relation to indigenous community and local community, for the use and exchange of the biological resource among themselves in the exercise of their traditional and customary practices;

(h)

taking of a biological resource by any person that is—

(i)

a living modified organism as defined in the

Biosafety Act 2007 [Act 678] for which intellectual property rights have been granted and subsist;

or

(ii)

a plant variety for which a breeder’s right has been granted and subsists under the Protection of New Plant Varieties Act 2004 [Act 634]; and

(i)

access to a biological resource exempted under section 60.

Small farmers’ rights

Section 6

(a)

to save, use, exchange and sell farm-saved seed or propagating material; and

(b)

to undertake conventional breeding or traditional practices in use in agriculture, horticulture, poultry farming, dairy farming, animal husbandry or bee keeping.

(2)

For the purposes of this section, “small farmer” has the meaning assigned to it in the Protection of New Plant Varieties

Act 2004.

AUTHORITIES

National Competent Authority

Section 7

(2)

The National Competent Authority shall consist of the following members:

(a)

the Secretary General of the Ministry responsible for natural resources and environment who shall be the

Chairman; and

(b)

such number of persons to be appointed by the Minister.

Functions of the National Competent Authority

Section 8

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The National Competent Authority shall have the following functions:

(a)

to coordinate the implementation and enforcement of the provisions of this Act by the Competent Authorities;

(b)

to determine the fees payable upon consultation with the

Competent Authorities;

(c)

to communicate with other countries and the secretariat established under any treaty, agreement, convention or protocol relating to access and benefit sharing in relation to a biological resource, as appropriate, on matters under this Act;

(d)

to implement and to fulfill the requirements under any treaty, agreement, convention or protocol relating to access and benefit sharing in relation to a biological resource to which Malaysia is a party where such treaty, agreement, convention or protocol relates to the purposes of this Act;

(e)

to create awareness and to provide training, education and information relating to access and benefit sharing in relation to a biological resource;

(f)

to keep and maintain a register of permits issued by the

Competent Authorities and information relating to the permit;

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(g)

to establish measures under subsection 30(1) with the aim of monitoring and tracking of a biological resource or traditional knowledge associated with a biological resource accessed;

(h)

to support customary laws and practices of indigenous community and local community, and the development of community protocols and procedures by the indigenous community and local community, as the case may be;

(i)

to establish and maintain a clearing house mechanism under section 32;

(j)

to act as Competent Authority for all ex-situ collections where the origin of the biological resource cannot be ascertained with due diligence and which do not come within the jurisdiction of any other Competent Authority;

and

(k)

to do such other things as it deems fit to enable it to perform its functions effectively or which are incidental to the performance of its functions.

Competent Authorities

Section 9

(2)

The Competent Authorities shall establish an advisory body to deal with matters relating to indigenous community and local community and traditional knowledge associated with the biological resource comprising representatives of indigenous community and local community whose advice shall be sought and taken into account.

(3)

The Competent Authorities may, if it thinks necessary, establish such committee to facilitate the carrying out of its functions under this Act.

(4)

Any member of advisory body appointed under subsection (2), other person invited to any meeting of the advisory body and member of committee established under subsection (3)

may be paid such allowances and other expenses as the Competent

Authorities may determine.

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(5)

The Competent Authorities shall consult and seek the advice of the National Competent Authority in the exercise of its powers and performance of its functions under this Act.

Functions and powers of the Competent Authorities

Section 10

(a)

to deal with all the applications for access to a biological resource or traditional knowledge associated with a biological resource within its jurisdiction and the sharing of benefits arising from the utilization of the biological resource or traditional knowledge associated with a biological resource;

(b)

to maintain a record of all access applications and decisions relating to such applications, including the permits issued;

(c)

to prepare an annual report concerning such access applications and decisions relating to such applications including permits issued and to submit the report and copies of the permits to the National Competent Authority on or before such date as the National Competent

Authority may determine; and

(d)

to do such other things as it deems fit to enable it to perform its functions effectively or which are incidental to the performance of its functions.

(2)

The Competent Authorities shall have the powers to do all things necessary or expedient for or in connection with the performance of its functions under this Act.

Advisory Committee

Section 11

(2)

The members of Advisory Committee appointed under subsection (1) and any other person invited to any meeting of the Advisory Committee may be paid such allowances and other expenses as the National Competent Authority may determine.

(3)

A member of the Advisory Committee appointed under subsection (1) shall, unless he sooner resigns or vacates his office or his appointment is sooner revoked, hold office for a term not exceeding two years and shall be eligible for reappointment.

(4)

The Advisory Committee shall, upon request, provide advice on scientific, legal, technical, ethical and other relevant disciplines to the National Competent Authority and the Competent

Authority.

REQUIREMENTS FOR PERMIT TO ACCESS BIOLOGICAL

RESOURCES

Application for permit for commercial or potential commercial purpose

Section 12

(2)

The Competent Authority may, after receiving the application under subsection (1), approve the application, if the following matters have been satisfied:

(a)

a benefit sharing agreement has been established in accordance with section 22;

(b)

in the case of access to a biological resource or traditional knowledge associated with a biological resource, as the case may be, the applicant has obtained the prior informed consent in accordance with section 23;

(c)

the application is not for any threatened taxa;

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(d)

the application is not for any endemic species, rare species or any species protected under any Federal or State law;

(e)

the access is not likely to result in adverse effects on the livelihood or cultural practices including religious, ceremonial or other traditional or customary practices of indigenous community and local community;

(f)

in the case of access to human genetic resource, its use is not for the purposes contrary to ethical values or the public interest;

(g)

the access may not result in adverse environmental impact which may be difficult to control and mitigate;

(h)

the access may not cause genetic erosion or affect any function of the ecosystem;

(i)

the access may not adversely affect food security;

(j)

the use of the biological resource is not for the purposes contrary to the national or State interest;

(k)

the use of the biological resource is not for the development of biological or chemical weapons, or for military or terrorist purposes;

(l)

the use of the biological resource is not for the purposes associated with genetic use restriction technology;

(m)

the applicant has not committed an offence under this

Act;

(n)

the applicant has not been adjudicated a bankrupt or, in the case of a company, has not been wound up;

(o)

the application complies with the requirements of this

Act or any other written law; and

(p)

the use of the biological resources is not contrary to the related international agreements or instruments to which

Malaysia is a party.

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(3)

The Competent Authority shall refuse the application if—

(a)

any of the grounds specified in subsection (2) is not fulfilled; or

(b)

after consultation with the National Competent Authority, the applicant is from, or otherwise based or operating in, jurisdictions which do not provide for adequate and effective measures that requires biological resources utilized within its jurisdiction to be accessed in accordance with prior informed consent and that mutually agreed terms to be established as provided under this Act.

(4)

Notwithstanding subsection (3), the Competent Authority may issue a permit relating to paragraphs (2)(c) and (d) if the

Competent Authority is satisfied that the application for permit does not undermine the conservation and sustainable use of biodiversity.

(5)

After giving due consideration to the application under subsections (1) and (2), the Competent Authority may—

(a)

approve the application, with or without condition, and issue a permit to the applicant; or

(b)

refuse the application, stating the grounds for refusal.

(6)

Any person who accesses a biological resource or traditional knowledge associated with a biological resource without a permit under subsection (1) or contravenes any condition imposed on the permit under subsection (5) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five million ringgit.

Access to Biological Resources and Benefit Sharing 21

Issue of permit for commercial or potential commercial purpose

Section 13

(2)

Upon issuance of the permit under subsection (1), there shall be no change of use in relation to the biological resource as specified in the permit except upon a fresh application being made and a permit issued under this section.

(3)

The Competent Authority may at any time after issuing a permit under subsection (1)—

(a)

impose any additional condition on the permit as it thinks necessary or expedient; or

(b)

amend or revoke any condition imposed on the permit.

(4)

Where the Competent Authority invokes subsection (3), the Competent Authority shall give the permit holder a written notice of its intention to do so and opportunity to make written representations within the period specified in the notice.

(5)

After the expiry of the period specified in the notice, and after considering any representation made by the permit holder, the Competent Authority shall decide whether to impose, vary or revoke any condition under subsection (3).

(6)

The Competent Authority shall give the permit holder a written notice of its decision under subsection (5) as soon as practicable and the decision shall take effect on a date specified in the written notice.

(7)

Any person who contravenes subsection (2) or any condition imposed on the permit under subsection (3) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

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Permit for commercial or potential commercial purpose not transferable

Section 14

(2)

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

Application for permit for non-commercial purpose

Section 15

(2)

Any activity undertaken under subsection (1) shall be in collaboration with a public higher education institution, public research institution or Government agency, unless the relevant

Competent Authority is satisfied that—

(a)

the applicant is a non-profit organization based or registered in Malaysia;

(b)

local researchers are involved in the activity; and

(c)

a program for capacity building is included in the activity.

Access to Biological Resources and Benefit Sharing 23

(3)

The Competent Authority may, after receiving the application under subsection (1), approve the application, if the following matters have been satisfied:

(a)

the application is not for commercial or potential commercial purpose;

(b)

in the case of access to a biological resource or traditional knowledge associated with a biological resource, as the case may be, the applicant has obtained the prior informed consent in accordance with section 23;

(c)

the application is not for any threatened taxa;

(d)

the application is not for any endemic species, rare species or any species protected under any Federal or State law;

(e)

the access is not likely to result in adverse effects on the livelihood or cultural practices including religious, ceremonial or other traditional or customary practices of indigenous community and local community;

(f)

in the case of access to human genetic resource, its use is not for the purposes contrary to ethical values or the public interest;

(g)

the access may not result in adverse environmental impact which may be difficult to control and mitigate;

(h)

the access may not cause genetic erosion or affect any function of the ecosystem;

(i)

the access may not adversely affect food security;

(j)

the use of the biological resource is not for the purposes contrary to the national or State interest;

(k)

the use of the biological resource is not for the development of biological or chemical weapons, or for military or terrorist purposes;

(l)

the use of the biological resource is not for the purposes associated with genetic use restriction technology;

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(m)

the applicant has not committed an offence under this

Act;

(n)

the applicant has not been adjudicated a bankrupt or, in the case of a company, has not been wound up;

(o)

the application complies with the requirements of this

Act or any other written law; and

(p)

the use of the biological resources is not contrary to related international agreements or instruments to which

Malaysia is a party.

(4)

The Competent Authority shall refuse the application if—

(a)

any of the grounds specified in subsection (3) is not fulfilled; or

(b)

after consultation with the National Competent Authority, the applicant is from, or otherwise based or operating in, jurisdictions which do not provide for adequate and effective measures that requires biological resources utilized within its jurisdiction to be accessed in accordance with prior informed consent and that mutually agreed terms to be established as provided under this Act.

(5)

Notwithstanding subsection (4), the Competent Authority may issue a permit relating to paragraphs (3)(c) and (d) if the

Competent Authority is satisfied that the application for permit does not undermine the conservation and sustainable use of biodiversity.

(6)

After giving due consideration to the application under subsections (1) and (3), the Competent Authority may—

(a)

approve the application, with or without condition, and issue a permit to the applicant; or

(b)

refuse the application, stating the grounds for refusal.

Access to Biological Resources and Benefit Sharing 25

(7)

Any person who accesses a biological resource or traditional knowledge associated with a biological resource without a permit under subsection (1) or contravenes any condition imposed on the permit under subsection (6) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding one million ringgit.

Issue of permit for non-commercial purpose

Section 16

(2)

Upon issuance of the permit under subsection (1), there shall be no change of use in relation to the biological resource as specified in the permit except upon a fresh application being made and a permit issued under this section.

(3)

The Competent Authority may at any time after issuing a permit under subsection (1)—

(a)

impose any additional condition on the permit as it thinks necessary or expedient; or

(b)

amend or revoke any condition imposed on the permit.

(4)

Where the Competent Authority invokes subsection (3), the Comptetent Authority shall give the permit holder a written notice of its intention to do so and opportunity to make written representations within the period specified in the notice.

(5)

After the expiry of the period specified in the notice, and after considering any representation made by the permit holder, the Competent Authority shall decide whether to impose, vary or revoke any condition under subsection (3).

(6)

The Competent Authority shall give the permit holder a written notice of its decision under subsection (5) as soon as practicable and the decision shall take effect on a date specified in the written notice.

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(7)

Any person who contravenes subsection (2) or any condition imposed on the permit under subsection (3) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

Decision to be informed

Section 17

The Competent Authority shall inform its decision in writing to the applicant and notify the National Competent Authority as soon as practicable of the outcome of any application relating to permits made under this Act.

Section 18

Circumstances where permit is not required

No permit is required—

(a)

by any person employed or studying and carrying out research for non-commercial purpose in or under the authority of, a public higher education institution, public research institution or Government agency within Malaysia, subject to such conditions as may be prescribed and subject to prior informed consent of the relevant indigenous community and local community has been obtained for any access to a biological resource and traditional knowledge associated with a biological resource referred to in subsection 23(1);

(b)

for the exchange of biological resources between persons within a public higher education institution, public research institution or Government agency within Malaysia or between such institutions or agencies within Malaysia for non-commercial purpose, unless otherwise required by a Competent Authority and subject to such conditions as may be prescribed; or

(c)

by any person or institution in or outside Malaysia who accesses a biological resource from a permit holder under subsection 15(1) or the person or institution under paragraph (a), at the request of such permit holder or the person or institution, for the purpose of carrying out or continuing any research for non-commercial purpose.

Access to Biological Resources and Benefit Sharing 27

Transfer of biological resource or results of research in relation to biological resource

Section 19

(b)

shall transfer any biological resource or traditional knowledge associated with a biological resource or results of research in relation to a biological resource or traditional knowledge to a person or institution other than that referred to in paragraphs 18(a)

and (b) without the prior approval of the Competent Authority.

(2)

Where the approval is given by the Competent Authority for the transfer, such transfer shall be subject to such conditions as may be prescribed and the transferee shall be required to apply for a permit under this Act, unless otherwise decided by the Competent Authority.

(3)

A permit holder or the person or institution referred to in paragraphs 18(a) and (b) shall notify the Competent Authority of the access and such access may be subject to such terms and conditions as may be imposed by the Competent Authority.

Permit for non-commercial purpose not to be used for commercial purpose

Section 20

No person issued with a permit for non-commercial purpose, and no person or institution referred to in paragraphs 18(a) and

(b)

and the transferee referred to in subsection 19(2) shall carry out, or allow others to carry out, research and development for commercial purposes on any biological resource or traditional knowledge associated with the biological resource, unless the person obtains a permit for commercial or potential commercial purpose under section 13 and a benefit sharing agreement has been entered into in accordance with section 22.

Possession, etc., of biological resource and traditional knowledge associated with biological resource

Section 21

(a)

supplies, sells, offers or advertises for sale; or

(b)

offers for profit, gain or benefit,

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such biological resource or traditional knowledge associated with a biological resource to a person who requires a permit under this Act commits an offence.

(2)

Any person who commits an offence under subsection (1)

shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding five hundred thousand ringgit, or to imprisonment for a term not exceeding ten years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five million ringgit.

Benefit sharing agreement

Section 22

(2)

A benefit sharing agreement shall be based upon mutually agreed terms and provide for fair and equitable benefit sharing.

(3)

Where the Federal Government or State Authority is not the resource provider under subsection (1), it may require the applicant to pay a percentage of any monetary benefits derived under the benefit sharing agreement as it may determine.

(4)

Any such monetary benefits shall be deposited into a fund as may be established by the Federal Government or State

Government.

(5)

The Competent Authority shall use any payment or any part of the payment received under this Part towards the conservation of biodiversity and the sustainable use of its components and for such other incidental expenses.

Requirement for prior informed consent and mutually agreed terms, etc.

Section 23

(a)

a biological resource on land to which such indigenous community and local community have a right as established by law; and

Access to Biological Resources and Benefit Sharing 29

(b)

traditional knowledge associated with a biological resource that is held by such indigenous community and local community.

(2)

The prior informed consent of indigenous community and local community shall be obtained in accordance with customary laws and practices, protocols and procedures of indigenous community and local community, as the case may be.

(3)

Any person who intends to access the biological resource or traditional knowledge in subsection (1) for commercial or potential commercial purposes under subsection 12(1) shall enter into a benefit sharing agreement with the relevant indigenous community and local community.

(4)

Any prior informed consent shall be obtained from and benefit sharing agreement entered into with—

(a)

the representative, organisation or body identified in accordance with the customary laws and practices, protocols and procedures of the said indigenous community and local community; or

(b)

where no such representative or organisation of the traditional knowledge associated with a biological resource can be identified—

(i)

with the holders of the traditional knowledge associated with a biological resource within the indigenous community and local community; or

(ii)

with the Federal Government or State Authority, as the case may be, if the holders of the traditional knowledge associated with a biological resource cannot be identified.

(5)

Any monetary benefit obtained from the benefit sharing agreement entered under subparagraph (4)(b)(ii) shall be deposited into a fund as may be established by the Federal or the State Government and any benefit, including where applicable non-monetary benefit, shall be applied for the interest of indigenous community and local community taking into account the advice of the advisory body established under subsection 9(2).

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(6)

Where the same traditional knowledge associated with a biological resource is shared by more than one indigenous or local community—

(a)

the applicant shall obtain the prior informed consent of and enter into benefit sharing agreement with the duly identified representative or organization of all the holders of the traditional knowledge associated with the biological resource; or

(b)

where it is not practicable in all the circumstances of the case to ascertain all such holders, and this is proven to the satisfaction of the Competent Authority, the applicant shall obtain the prior informed consent of, and enter into the benefit sharing agreement with the duly identified representatives or organisation of such of the holders as the applicant may ascertain.

(7)

In the event that there is a claim by any indigenous community and local community that it is the rightful holder of the traditional knowledge associated with a biological resource after the application is approved, the Competent Authority shall—

(a)

determine the said claim in consultation with the indigenous community and local community whose prior informed consent has been obtained and benefit sharing agreement entered into;

(b)

if the claim is proven to the satisfaction of the Competent

Authority, declare that the said indigenous community and local community is entitled to share the benefits due to the indigenous community and local community under the benefit sharing agreement; and

(c)

determine the quantum or nature of benefits to which the indigenous community and local community is entitled under paragraph (b), in consultation with all the indigenous community and local community concerned.

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PERMIT, REGISTER, RECORDS AND DISPOSAL

Permit as evidence of compliance

Section 24

(2)

The permit referred to in subsection (1) shall be evidence of the following information:

(a)

the prior informed consent of the Competent Authority for access to the biological resource;

(b)

the prior informed consent of the indigenous community and local community under section 23 for access to a biological resource or traditional knowledge associated with a biological resource, as the case may be;

(c)

the origin of the biological resource accessed;

(d)

the establishment of a benefit sharing agreement with the resource provider where applicable;

(e)

the person to whom the permit is issued; and

(f)

the use for which the permit is issued.

Register of permits

Section 25

The National Competent Authority shall keep and maintain a register of permits issued by the Competent Authorities.

Section 26

Records

(a)

the description of the biological resource or traditional knowledge associated with the biological resource, including available unique identifiers;

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(b)

the date or dates of access;

(c)

the place of access;

(d)

the quantity or size of the biological resource (such as weight or physical dimension);

(e)

the common and scientific name of, or given to, the biological resource;

(f)

the location where the biological resource is kept; and

(g)

the particulars about any subsequent physical disposition of the biological resource, including the names and addresses of others having possession of the biological resource or a part of the biological resource.

(2)

A copy of the records referred to in subsection (1) shall be furnished to the National Competent Authority and Competent

Authority within thirty days after the biological resource is taken or any other period as determined by the National Competent

Authority and Competent Authority, respectively.

(3)

A record referred to in subsection (1) shall be kept by the permit holder while the biological resource or traditional knowledge associated with a biological resource is in the holder’s possession and for twenty years after the end of the period of use.

Disposal of biological resource

Section 27

(2)

If the Competent Authority does not agree to take the biological resource in the circumstances mentioned in subsection

(1)

, the permit holder shall dispose of the biological resource in a manner as may be determined by the Competent Authority and the permit holder shall forthwith furnish a report of the disposal of the biological resource to the Competent Authority.

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REVOCATION OF PERMITS AND APPEALS

Revocation of permit

Section 28

(a)

the permit holder has contravened any provisions of this

Act;

(b)

the permit holder has contravened any of the conditions of the permit;

(c)

the permit was issued as a result of false, misleading or inaccurate information;

(d)

the permit was obtained improperly or illegally; or

(e)

the permit holder has been convicted of an offence under this Act.

(2)

Before revoking the permit, the Competent Authority shall give the permit holder an opportunity to be heard.

(3)

Where the Competent Authority revokes the permit under subsection (1), the Competent Authority shall immediately notify the permit holder and the National Competent Authority of the decision and grounds for the revocation.

(4)

Upon such notification, the permit holder shall immediately surrender the permit, any research results and related documents, and the accessed biological resource to the Competent Authority that issued the permit.

(5)

Any permit holder who contravenes subsection (4) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both, and in the case of a continuing offence, to a further fine not exceeding five thousand ringgit for each day during which the offence continues after conviction; or

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(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit, and in the case of a continuing offence, to a further fine not exceeding ten thousand ringgit for each day during which the offence continues after conviction.

Appeal against revocation of permit

Section 29

(2)

The Court may, after considering an appeal made under subsection (1), confirm or set aside the decision appealed against.

(3)

For the purposes of this section, “Court” means the High

Court of Malaya and the High Court in Sabah and Sarawak or either of the High Court in Malaya and the High Court in Sabah and Sarawak, as the case may require.

MONITORING AND TRACKING

Measures for monitoring and tracking

Section 30

(2)

Such measures shall include—

(a)

the designation of checkpoints; and

(b)

the requirement for the production of the permit at the checkpoints established.

(3)

The checkpoints designated under paragraph (2)(a) shall include offices or authorities dealing with applications for patent, product registration or approval and public research funding grants.

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(4)

The authorities responsible for the checkpoints shall inform the National Competent Authority and the relevant Competent

Authority in writing of the production of the permit under paragraph (2)(b).

Notification for application of patent

Section 31

(2)

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; and

(b)

where such person is a body corporate, to a fine of not exceeding five hundred thousand ringgit.

CLEARING HOUSE MECHANISM

Establishment of clearing house mechanism

Section 32

The National Competent Authority shall establish and maintain a clearing house mechanism as a means for sharing of information relating to access and benefit sharing and information provided by a Competent Authority to the National Competent Authority as required by this Act.

Section 33

Posting and confidential information

(2)

The information under subsection (1) shall not be posted if it is classified as confidential as determined by the relevant

Competent Authority.

(3)

For the purposes of subsection (2), information is classified to be confidential if—

(a)

it is culturally sensitive; or

(b)

disclosed, it may—

(i)

damage a person’s commercial interests;

(ii)

result in a risk to the biodiversity; or

(iii)

be detrimental to the national interest.

(4)

Any determination as to confidentiality under subparagraph (3)(b)(i) shall be made upon the application of the applicant.

USER MEASURES

Measures to support laws of other countries

Section 34

(2)

For the purposes of subsection (1), the National Competent

Authority shall establish measures aimed at preventing the use or commercialisation within Malaysia of a biological resource or traditional knowledge associated with a biological resource, which is not accompanied by a permit or its equivalent.

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(3)

A notification by a Competent Authority of the other Party to the Protocol to the National Competent Authority that it has not issued a permit or its equivalent for access to its biological resource or traditional knowledge associated with a biological resource, or mutually agreed terms have been established, shall be prima facie evidence of the notification.

POWERS RELATING TO ENFORCEMENT, SEIZURE, ARREST, ETC.

Enforcement officers

Section 35

The enforcement officers are any officer appointed by the

Minister upon recommendation of the Competent Authority.

Section 36

Power of investigation

(2)

In any case relating to the commission of an offence under this Act, any enforcement officer carrying out an investigation may exercise all or any of the special powers in relation to police investigation in seizable cases given by the Criminal Procedure

Code [Act 593].

(3)

This section shall not be construed as limiting or affecting any similar powers conferred on any person under any other written law.

Authority card

Section 37

(2)

Whenever such enforcement officer exercises any of the powers under this Act, he shall, on demand, produce to the person against whom the power is being exercised the authority card issued to him under subsection (1).

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Power to enter premises

Section 38

An enforcement officer may at any time enter any premises for the purpose of—

(a)

inspecting any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article as he considers necessary;

(b)

verifying the accuracy of records or statements or any information given to an enforcement officer; or

(c)

collecting any biological resource.

Access to computerized data

Section 39

Any enforcement officer conducting a search under this Act shall be given access to computerized data whether stored in a computer or otherwise, and for such purpose, shall be provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerized data.

Section 40

Seizure of thing, etc.

Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article that an enforcement officer reasonably suspects has been used or will be used in the commission of any offence under this Act may be seized and detained by the enforcement officer.

Section 41

Power to stop, search and seize conveyances

(2)

The person in control or in charge of the conveyance shall, if required to do so by the enforcement officer—

(a)

stop the conveyance and allow the enforcement officer to examine it; and

(b)

open all parts of the conveyance for examination and take all measures necessary to enable or facilitate the carrying out of such examination as the enforcement officer considers necessary.

(3)

A person who contravenes subsection (2) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding seven years or to both.

Notice of seizure

Section 42

(2)

A notice under subsection (1) need not be given if the seizure is made in the presence of—

(a)

the owner or his agent;

(b)

the occupier of the premises; or

(c)

the person in control or in charge of the conveyance where the seizure is made under section 40.

(3)

Where any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article are stored, kept or found, the enforcement officer seizing the

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items shall prepare a list of the items seized and immediately deliver a copy signed by him to the owner or person in charge of the place, premises or conveyance which has been searched, or to such owner’s or person’s agent or servant, at that place, premises or conveyance.

Temporary return of conveyance, etc.

Section 43

(2)

Where any seized conveyance, machinery, contrivance or equipment is temporarily returned under subsection (1), a person who—

(a)

fails, on demand, to surrender the conveyance, machinery, contrivance or equipment to the court; or

(b)

contravenes any of the terms or conditions imposed under subsection (1), commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both.

Forfeiture of seized biological resource, etc.

Section 44

(2)

An order for the forfeiture of any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article shall be made if it is proved to the satisfaction of the court that an offence under this Act has been committed and that the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article was the subject matter of or was used in the commission of the offence, even though no person has been convicted of such offence.

(3)

If there is no prosecution with regard to any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act, such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article shall be taken and deemed to be forfeited at the expiration of a period of one calendar month from the date of service of a notice to the last known address of the person from whom the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article was seized indicating that there is no prosecution in respect of such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article unless before the expiration of that period a claim thereto is made in the manner set out in subsections (4), (5), (6)

and (7).

(4)

Any person asserting that he is the owner of the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article referred to in subsection (3) and that it is not liable to forfeiture may personally or by his agent authorized in writing, give written notice to the enforcement officer in whose possession such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article is held that he claims the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article.

(5)

On receipt of the notice referred to in subsection (4), the enforcement officer shall refer the claim to a Magistrate for his decision.

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(6)

The Magistrate to whom a matter is referred under subsection (5) shall issue a summons requiring the person asserting that he is the owner of the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article and the person from whom it was seized to appear before him, and when they appear or they fail to appear, due service of the summons having been proved, the Magistrate shall proceed to the examination of the matter.

(7)

If it is proved that an offence under this Act or any of its subsidiary legislation has been committed and that the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article referred to in subsection (6)

was the subject matter of or was used in the commission of such offence, the Magistrate shall order the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article to be forfeited, and shall, in the absence of such proof, order its release.

(8)

Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited shall be delivered to the Competent

Authority and shall be disposed of in such manner as the Competent

Authority thinks fit, including repatriation under subsection (9)

if the Competent Authority so decides.

(9)

When a decision of repatriation is made under this Act in respect of any biological resource which has been imported into Malaysia in contravention of this Act, and the biological resource was brought into Malaysia in a conveyance, the owner or importer of the biological resource or his agent shall, if required in writing by the Competent Authority, provide or be responsible for—

(a)

the free passage for the return of the biological resource to the place at which the biological resource was shipped to Malaysia, or to any other port or place designated by the Competent Authority; and

(b)

where required, proper maintenance and storage of the biological resource during the voyage, flight or journey.

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(10)

No person shall be liable under subsection (9) unless the decision of repatriation has been made by the Competent

Authority within—

(a)

where there are no proceedings instituted, twelve months from the date on which the biological resource were imported into Malaysia; or

(b)

six months from the date the proceedings for the offence in connection with such importation into Malaysia are concluded.

(11)

Any person who contravenes subsection (9) commits an offence and shall, on conviction, be liable—

(a)

where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding one hundred and fifty thousand ringgit.

Property in forfeited biological resource, etc.

Section 45

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Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited under this Act shall be the property of the Competent Authority.

Section 46

Release of seized biological resource, etc.

Notwithstanding section 44, the Competent Authority may, where it thinks fit, at any time direct that any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act be released to the person from whose possession, custody or control it was seized.

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Section 47

Cost of holding seized biological resource, etc.

Where any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized or surrendered under this Act is held in the custody of the Competent Authority pending completion of any proceedings in respect of an offence under this Act, the cost of holding it in custody shall, in the event of any person being convicted of such offence, be a debt due to the Competent Authority or

Government, as the case may be, by such person and shall be recoverable accordingly.

Section 48

No costs or damages arising from seizure to be recoverable

No person shall in any proceedings before any court in respect of the seizure of any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized or surrendered in the exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of such proceedings or to any damages or other relief unless such seizure was made without reasonable cause.

Section 49

Additional powers

(a)

to require the production of records, accounts and documents and to inspect, examine and copy any of the records, accounts and documents;

(b)

to require the production of any identification document from any person in relation to any case or offence under this Act or any of its subsidiary legislation; or

(c)

to make such enquiry as may be necessary to ascertain whether the provisions of this Act or any of its subsidiary legislation have been complied with.

(2)

A person who fails to comply with a request made under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both.

Access to Biological Resources and Benefit Sharing 45

GENERAL

Payment into fund

Section 50

Except for the money received by a Competent Authority under section 22 and subsection 23(5), all moneys received under this Act by a Competent Authority shall be paid into and form part of—

(a)

where the Competent Authority is under the jurisdiction of the Federal Government, the Consolidated Fund; or

(b)

where the Competent Authority is under the jurisdiction of the State Government, the State Consolidated Fund.

Compounding of offences

Section 51

(a)

any offence under this Act and any regulations made under the Act that may be compounded;

(b)

the criteria for compounding such offence; and

(c)

the method and procedure for compounding such offence.

(2)

The Competent Authority may, with the consent in writing of the Public Prosecutor, compound any offence committed by any person under this Act and prescribed to be a compoundable offence by making a written offer to the person suspected to have committed the offence to compound the offence upon payment to the Competent Authority of an amount of money not exceeding fifty per centum of the amount of maximum fine for that offence within such time as may be specified in his written offer.

(3)

An offer under subsection (2) may be made at any time after the offence has been committed but before any prosecution for it has been instituted.

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(4)

If the amount specified in the offer is not paid within the time specified in the offer or such extended time as the Competent

Authority may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.

(5)

Where an offence has been compounded under subsection

(2)

, no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made, and any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized in connection with the offence may be forfeited or released by the

Competent Authority in accordance with sections 44 and 46, subject to such terms and conditions as the Competent Authority thinks fit.

Institution of prosecution

Section 52

Prosecutor, make regulations prescribing—

Act shall be instituted except by or with the written consent of the Public Prosecutor.

Section 53

False declaration

(a)

where such person is an individual, to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

(2)

Any person who—

(a)

without lawful authority alters, forges, mutilates or defaces any permit, certificate or registration; or

Access to Biological Resources and Benefit Sharing 47

(b)

knowingly makes use of any permit, certificate or registration which has been so altered, forged, mutilated or defaced, commits an offence and shall, on conviction, be liable—

(aa) where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or

(bb) where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

Offence committed by body corporate

Section 54

Where a body corporate commits an offence under this Act or any of its subsidiary legislation, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management—

(a)

may be charged severally or jointly in the same proceedings with the body corporate; and

(b)

where the body corporate is found to have committed the offence, shall be deemed to commit that offence and shall, on conviction, be liable to the penalty applicable to an individual unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves—

(i)

that the offence was committed without his knowledge, consent or connivance; and

(ii)

that he took all reasonable precautions and had exercised due diligence to prevent the commission of the offence.

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Offence by partner, servant or authorized intermediary

Section 55

Any person who would have been liable to any penalty under this Act for any act, omission, neglect or default if the act, omission, neglect or default is committed by him personally shall be liable to the same penalty if the act, omission, neglect or default is committed by his partner, servant or authorized intermediary unless he proves—

(a)

that the act, omission, neglect or default was committed without his knowledge, consent or connivance; and

(b)

that he took all reasonable precautions and had exercised due diligence to prevent the act, omission, neglect or default.

Public servant

Section 56

Every member, officer, servant or agent of the National

Competent Authority or Competent Authority while discharging his duties as such member, officer, servant or agent shall be deemed to be a public servant within the meaning of the Penal

Code [Act 574].

Section 57

Protection against suit and legal proceedings

No action shall lie or prosecution shall be brought, instituted or maintained in any court against—

(a)

any member, officer or enforcement officer of the National

Competent Authority and Competent Authority; and

(b)

any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the National Competent

Authority or Competent Authority, enforcement officer or any other officer duly appointed by the National

Competent Authority or Competent Authority,

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if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it and for the carrying into effect the provisions of this Act.

Protection of informers

Section 58

(2)

If any book, record, account, document or computerized data which is in evidence or liable to inspection in any civil or criminal proceeding contains any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.

(3)

If on the trial for any offence under this Act or any of its subsidiary legislation, the court after full enquiry into the case believes that the informer willfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding the court is of the opinion that justice cannot be fully done between the parties in that proceeding without the discovery of the informer, the court may require the production of the original complaint, if in writing, and permit enquiry and require full disclosure, concerning the informer.

Rewards

Section 59

The National Competent Authority or Competent Authority may order such rewards as it thinks fit to be paid to any person for services rendered in connection with the detection of any offence under this Act or any of its subsidiary legislation, or in connection with any seizures made under this Act.

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Section 60

Power to exempt

(a)

a specific biological resource or a specific collection of biological resources, including future additions to the collection and for such purpose as the Minister may specify, if—

(i)

the resource is held as a specimen away from its natural environment, whether in a collection or otherwise, by a government department or agency and the access to the biological resource is administered by the said department or agency in a manner consistent with the objective of this

Act;

(ii)

there is a request in writing by the government department or agency holding the biological resource in accordance with subparagraph (1)(a)(i);

or

(iii)

there are existing exchange and use practices that provides for access and benefit sharing of biological resource consistent with the objective of this Act; and

(b)

any person or class of persons or any biological resource, including any use of a biological resource, upon recommendation of the relevant Competent Authority and in consultation with the National Competent Authority and the relevant advisory body established under subsection 9(2) where the interest of indigenous community and local community may be affected, subject to such terms and conditions as the Minister thinks fit to impose.

(2)

The Minister may prescribe different procedures in respect of a specified biological resource or a specified collection of biological resource to promote the conservation of biodiversity.

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(3)

The Minister shall obtain the consent of the relevant State

Authority before making any exemption under paragraph (1)(a)

where the biological resource is within the jurisdiction of that particular State Authority.

(4)

The Minister may, upon recommendation of the relevant

Competent Authority and in consultation with the National

Competent Authority and the relevant advisory body established under subsection 9(2) where the interest of indigenous community and local community may be affected, revoke any order made under subsection (1) if he satisfied that such exemption should no longer be granted.

Power to amend Schedules

Section 61

(2)

The First Schedule may only be amended with the consent of the relevant State Authority.

Power to make regulations

Section 62

(2)

Without prejudice to the generality of subsection (1), regulations may be made for the following purposes:

(a)

to prescribe the manner of applying for access to a biological resource and traditional knowledge associated with a biological resource under this Act, the particulars to be supplied by an applicant, the duration, terms, conditions and restrictions to be impose upon issuance of a permit;

(b)

to prescribe the terms and conditions for access to a biological resource and traditional knowledge associated with a biological resource under paragraphs 18(a) and

(b)

;

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(c)

to provide for special procedures for a specified biological resource or a specified collection of biological resource to advance conservation of biodiversity;

(d)

to provide for standard procedures or codes for access and benefit sharing for biological resources generally or specified biological resource or collections of biological resource and traditional knowledge associated with a biological resource;

(e)

to prescribe the manner for access to a biological resource and traditional knowledge associated with a biological resource by an authorized intermediary;

(f)

to provide for the cancellation of the permit;

(g)

to provide for matters relating to fees and charges;

(h)

to provide the procedure for appeals;

(i)

to provide for the composition, allowances, procedures and incidental matters relating to the establishment and conduct of the advisory body, committee and Advisory

Committee;

(j)

to provide for the minimum terms for a benefit sharing agreement;

(k)

to provide the measures aimed at preventing the use within Malaysia, of a biological resource or traditional knowledge associated with a biological resource, which is not accompanied by a permit or its equivalent and evidence that mutually agreed terms have been established;

(l)

to provide the measures for the purpose of monitoring and tracking the biological resource accessed;

(m)

to provide the essential elements for obtaining the prior informed consent of the indigenous community and local community; and

(n)

to provide for such other matters as are contemplated by, or necessary for giving full effect to, the provisions of this Act and for their due administration.

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(3)

The regulations made under subsection (1) may prescribe any act in contravention of the regulations to be an offence and may prescribe penalties—

(a)

where such person is an individual, to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both; or

(b)

where such person is a body corporate, to a fine not exceeding five hundred thousand ringgit.

Transitional provisions

Section 63

(2)

Pending the determination of such application, such person may continue accessing the biological resource or traditional knowledge associated with a biological resource.

(3)

After the date of the coming into operation of this Act, any person who is in possession of a biological resource or traditional knowledge associated with the biological resource in respect of which this Act would apply and there is no benefit sharing agreement entered, shall enter into such agreement with the resource provider if—

(a)

there is a new use of the biological resource or traditional knowledge associated with the biological resource; or

(b)

there is development of a new product arising from the biological resource or traditional knowledge associated with the biological resource.

(4)

Upon the conclusion of the benefit sharing agreement under subsection (3), the Competent Authority shall issue a permit under section 12 for access of the biological resource or traditional knowledge associated with the biological resource.

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First Schedule

[Subsection 9(1)]

COMPETENT AUTHORITIES

Competent Authority

Biological Resource

Region

Ministry of Federal Territories

All covered under this Act

Federal Territories of

Kuala Lumpur, Labuan and Putrajaya

Johor State Economic Planning

Unit

All covered under this Act

Johore

Kedah State Economic

Planning Unit

All covered under this Act

Kedah

Kelantan State Economic

Planning Unit

All covered under this Act

Kelantan

Melaka State Economic

Planning Unit

All covered under this Act

Malacca

Negeri Sembilan State Forestry

Department

All covered under this Act

Negeri Sembilan

Pahang State Economic

Planning Division

All covered under this Act

Pahang

Penang State Economic

Planning Unit

All covered under this Act

Penang

Perak State Economic

Planning Unit

All covered under this Act

Perak

Perlis State Economic Planning

Unit

All covered under this Act

Perlis

Selangor State Economic

Planning Unit

All covered under this Act

Selangor

Terengganu State Economic

Planning Unit

All covered under this Act

Terengganu

Sabah Biodiversity Council

All covered under this Act

Sabah

Ministry of Urban Development and Natural Resources

All covered under this Act

Sarawak

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Second Schedule

[Subsection 15(1)]

Form 1

STATUTORY DECLARATION

APPLICATION FOR A PERMIT FOR NON-COMMERCIAL PURPOSE

I ………………… [name of applicant] (NRIC No./Passport No. ………………)

of ……………………………… [address] solemnly and sincerely declare the following:

Section 1

That in relation to ……………………………………………….. [insert the biological resource, traditional knowledge associated with the biological resource, purpose for access and use], I—

(a)

do not intend to use the biological resource or traditional knowledge associated with the biological resource, to which the proposed action relates, for commercial or potential commercial purposes;

(b)

undertake to give a written report on the results of any research on a biological resource or traditional knowledge associated with the biological resource to the Competent Authority;

(c)

undertake to offer a taxonomic duplicate of the biological resource collected to the Competent Authority;

(d)

undertake not to give the biological resource to any person other than the Competent Authority without its prior written permission; and

(e)

undertake not to carry out, or allow others to carry out, research or development for commercial or potential commercial purposes on any biological resource, or derivative, or in relation to traditional knowledge associated with the biological resource, unless he obtains a permit for commercial or potential commercial purposes in accordance with section 12 and a benefit sharing agreement has been entered into in accordance with subsection 22(1) of this Act.

Section 2

I am aware that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 53 of this Act.

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1960.

Subscribed and solemnly declared by the abovenamed

.............................................................................................

at..........................................................................................

in the State of .....................................................................

this...................................................................., 20.............

Before me,

............................................................

(Signature of Sessions Court Judge,

Magistrate or Commissioner for Oaths)

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⎪

⎨

⎪

⎩

KUALA LUMPUR

ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017

About this act

Part I

(2)

(3)

(2)

(3)

(a)

(b)

(c)

(d)

(a)

(b)

(c)

(a)

(b)

(a)

(b)

(a)

(b)

(c)

(d)

(i)

(ii)

(iii)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(a)

(b)

(2)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(ii)

(i)

(a)

(b)

(2)

Part II

(2)

(a)

(b)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(2)

(3)

(4)

(5)

(a)

(b)

(c)

(d)

(2)

(2)

(3)

(4)

Part III

(2)

(a)

(b)