Sabah Biodiversity Enactment 2000

whether directly or indirectly; or

whether orally, in writing, diagrammatically, pictorially, by the use of symbols or photographs, or in any combination thereof;

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“animal” includes –

any mammal (other than man), bird, reptile, amphibian, arthropod, or other vertebrate or invertebrate, whether alive or dead, and the egg, young or immature from derived from them;

any readily recognisable part or derivative of an animal;

wildlife as defined under the Wildlife Conservation Enactment 1997 [No.6 of 1997];

fish as defined in the Fisheries Act 1985 [Act 317]; and

marine and other aquatic ecosystem life forms;

"biodiversity" means biological diversity, being the variability among living organisms from all sources, including plant and animal, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part of, and the diversity within species, between species and ecosystems, and includes biological resources or traditional knowledge associated with biological resources;

"Biodiversity Centre" means the Sabah Biodiversity Centre established under section 9;

“biological diversity” means the variability among living organism from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; includes diversity within species, between species and of ecosystems;

"biological resources" includes-

the genetic resources, organisms, microorganisms, derivatives and parts of the genetic resources, organisms, microorganisms or derivatives;

the populations and any other biotic component of an ecosystem with actual or potential use or value for humanity; and

any information relating to paragraphs (a) and (b);

"biotechnology" means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or to modify products or processes for specific use;

"Council" means the Sabah Biodiversity Council established under section 3;

“derivatives” includes a naturally occurring biochemical compound derived, developed or synthesised, 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;

“Director” means the Director of the Sabah Biodiversity centre;

“ex situ collection" includes biological resources or traditional knowledge associated with biological resources that are housed, planted, stored, kept or found outside their natural

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habitats such as in herbariums, research institutions, universities, botanical gardens, private collections and any other similar conservation centres;

“export” means to take or cause to be taken out of Sabah any biological resources or traditional knowledge associated with biological resources by land, sea, air or any other means, as the case may be, or to place any biological resources in a vessel, barge, conveyance or aircraft for the purpose of the biological resources being taken out of Sabah by land, sea, or air;

“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;

"Government" means the Government of the State of Sabah;

"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;

"Minister" means the Minister for the time being responsible for matters relating to natural resources;

“native” means a group of individuals comprising native as defined in the Interpretation

(Definition of Native) Ordinance (Cap.64);

“plant” includes-

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

any readily recognisable 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;

“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 technology application by analysing , sampling, bioassaying and inventorising or other methods for any purpose including taxonomic research, and potential commercial product development;

“resource provider” includes –

the Council;

a government department or agency holding a biological resources or traditional knowledge associated with biological resources away from its natural environment, whether in a collection or otherwise;

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a private landowner, where the resource is on private land;

the native and local community, where the resource is on land to which they have a right;

the native and local community, where they are the holders of the traditional knowledge associated with biological resources;

an individual, where the genetic resource is found within that individual;

“take” includes –

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

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

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

to obtain a biological resources or traditional knowledge associated with biological resources in any other way;

“User” means any individual, a group of individuals, educational and research institution or corporate entity seeking access to biological resources or traditional knowledge associated with biological resources and where the context so requires, the aforementioned to whom the access licence is granted.

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

and

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

For the purpose of this section, “small farmer” means a farmer whose farming operations do not exceed the size of holding as prescribed by the Minister.

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There shall be established for the purpose of this Enactment a body by the name of the Sabah Biodiversity Council.

The Council shall consists of the following members:

The Director shall be the Secretary to the Council.

Functions and powers of the Council

to advise the Government on matters relating to the conservation and sustainable use of biological resources or traditional knowledge associated with biological resources;

(aa) to advise the Government on matters relating to the management of biological resources and traditional knowledge associated with biological resources in accordance with international requirements;

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to advise the Government on strengthening of the management of biological resources or traditional knowledge associated with biological resources of the

State;

to monitor the State policy with regards to biotechnology and application of biotechnology;

–

to support fair and equitable sharing of benefits to access and benefit sharing in relation to a biological resources or traditional knowledge associated with biological resources;

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

–

[Deleted by En. 9 of 2023]

Duration of office and eligibility for reappointment.

The following persons shall be disqualified from being appointed as, or if appointed, remaining a member -

An appointment member of the Council shall be deemed to have vacated the office:

The Council shall meet once during every four months of the year and shall, in addition, meet as and when convened by the Chairman.

Seven members shall be a quorum at any meeting of the Council of which two of such members are members appointed in paragraph 3(2)(k).

Decisions of the Council shall be taken by the votes of the majority of the members present and voting thereon.

If on any question to be determined by the Council there is an equality of votes, the

Chairman or if the Chairman is absent the presiding member shall have a casting vote in addition to his deliberative vote.

Subject to this Enactment, the Council shall determine its own procedure.

Minutes shall be kept of all proceedings of the Council.

The Minister may invite or request a person, who is not a member of the Council, to attend any meeting of the Council for the purpose of advising it on a matter under discussion but the person so attending has no right to vote at the meeting.

Presiding at meetings of Council.

The Chairman of the Council shall preside at all meetings of the Council.

If, owing to absence or inability to act due to illness or any other cause, the Chairman of the Council is unable to preside at any meeting the members present shall elect one of their number to preside at that meeting.

No business shall be transacted at any meeting of the Council in the absence of the

Chairman until a member has been elected to preside over that meeting.

Council may establish committee

Members of a committee may be appointed from amongst the members of the Council or such other person as the Council thinks fit.

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The Council shall appoint the chairman of the committee established under this section.

A member of a committee shall hold office for such term as the Council may specify in his letter of appointment and shall be eligible for reappointment.

The Council may, at any time, revoke the appointment of any member of a committee who is not a member of the Council.

A member of a committee who is not a member of the Council may, at any time, resign by giving a notice in writing to the chairman of the committee.

The committee shall be subject to and act in accordance with any direction given by the

Council.

The committee shall meet as often as may be necessary at such times and places as the chairman of the committee may determine.

The committee may determine its own procedure.

The committee may invite any other person to attend any meeting of the committee for the purpose of advising the committee on the matter under discussion, but the person is not entitled to vote at the meeting.

The members of the committee or any person invited under subsection (10) to attend any meeting of the committee may be paid such allowances as the Council may determine.

The committee shall cause minutes of all its meetings to be maintained and kept in proper form, and copies of the minutes shall be submitted by the committee to the Council as soon as practicable.

Disclosure of interest

A disclosure of interest under subsection (1) shall be recorded in the minutes of the meeting of the Council or the committee, as the case may be.

Upon disclosure under subsection (1), the member -

A member of the Council or the committee who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding thirty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

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No act or proceeding of the Council or the committee shall be invalidated on the ground that any member of the Council or the committee has contravened this section.

Council may appoint advisers

A person purporting to act pursuant to a delegation made under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

A delegation made under this section may at any time be revoked by the Council.

A delegation made under this section shall not preclude the Council itself from carrying out at any time the delegated functions or powers.

There shall be such number of officers, from amongst the members of the State public service, as may be necessary or expedient to assist the Director in the performance of his functions or in the exercise of his powers under this Enactment.

A person appointed under subsection (2) shall be subject to the direction, control and supervision of the Director.

Functions and powers of the Director

to manage the Biodiversity Centre;

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to deal with all the applications for access to biological resources or traditional knowledge associated with biological resources and the sharing of benefits arising from the utilization of the biological resources or traditional knowledge associated with biological resources;

to approve, after consultation with the Council, and issue access licence and export licence;

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

to regulate the access to the biological resources or traditional knowledge associated with biological resources of the state including the removal of any biodiversity from the State;

to identify the priorities for research on biodiversity to enhance undertaking, conservation and sustainable utilization of biodiversity and biological resources or traditional knowledge associated with biological resources, including ethnobotany, taxonomy and traditional uses;

to co-ordinate local, state and national activities relating to conservation, research and sustainable use of biological resources or traditional knowledge associated with biological resources and biodiversity;

to co-ordinate preparations for regional and international activities relating to the conservation, research and sustainable use of biological resources or traditional knowledge associated with biological resources and biodiversity;

to formulate programmes for systematic surveys of biodiversity and the collection and analysis of the data thereto;

to plan and initiate programmes for the utilization, conservation, protection and sustainable development of biological resources or traditional knowledge associated with biological resources;

to establish or caused to be established a system for the protection of biological resources or traditional knowledge associated with biological resources so that the native and local communities shall, at all time and in perpetuity, be the legitimate creators, users and custodian of such knowledge, and shall collectively benefit from the use of such knowledge.

to establish linkages with other institution or bodies, within or outside the State, with a view to enhancing the management, protection, preservation, research and utilization of the biodiversity or traditional knowledge associated with biological resources of the native and local community of the State;

to create awareness and to provide training, education and information relating to access and benefit sharing in relation to a biological resources or traditional knowledge associated with biological resources;

to support customary laws and practices of native and local communities,

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and the development of community protocols and procedures by the native and local communities, as the case may be;

generally to promote education and knowledge of the biodiversity of the State;

to carry on of all activities of which appears to the Director to be necessary, advantages or convenient for or in connection with the performance and exercise of his functions and powers; and

to do such other things as the Director deems fit to enable him to perform and exercise his functions and powers effectively or which are incidental to the performance and exercise of his functions and powers.

Delegation of powers

A person purporting to act pursuant to a delegation made under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

A delegation made under this section may at any time be revoked by the Director.

A delegation made under this section shall not preclude the Director himself from carrying out at any time the delegated functions or powers.

Sabah Biodiversity Centre.

There shall be established for the purpose of this Enactment a centre by the name of the Sabah Biodiversity Centre to be managed by the Director for the purpose of:

[Deleted by En. 9 of 2023]

The Fund shall be administered, controlled and maintained by the Director.

The Fund shall consist of –

The Fund shall be operated in accordance with the Financial Procedure Act 1957 [Act. 61.]

and any subsidiary legislation made thereunder.

The Fund shall be expended for the purpose of –

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

there is a reasonable prospect as determined by the Council that a biological resources or traditional knowledge associated with biological resources taken by the person will be subject to research and development; or

the collecting of a biological resource’s reproductive material for propagation is for the purpose of research and development.

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Access to a biological resources or traditional knowledge associated with biological resources shall not include the following activities:

Any person who contravenes subsection (1) commits an offence and shall, upon conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

For the purpose of this section, “protected biological resources” means any biological resources which has satisfied at least three of the following criteria:

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Provided that this section shall not apply to public officers obtaining access to biological resources or traditional knowledge with biological resources as part of their prescribed duties and responsibilities in their respective organisation and as provided for in their respective

Ordinance or Enactment which do not involve any collaboration with the second and third party.

[Deleted by En. 9 of 2023]

Conditions of approval for an access licence

identify a Sabah institution as the local collaborator that will collaborate and participate in the collection, research and development and other activities in relation to the biological resources or traditional knowledge associated with biological resources concerned; and

identify the foreign institution that shall act as the sponsor organisation responsible for the actions of the User with regard to the access activity, where appropriate.

The Government may impose or attach any other conditions to the approval of the application as it deems fit.

Application for an access licence.

State lands;

(aa) alienated land;

any reserves, natives customary lands or any other sites over which native and local communities exercise community-based or customary rights; or

any other areas, including rivers, tributaries, waterways or areas covered by water, marine parks or territorial waters of the State, and shall also include any ex situ collections in the State.

Notwithstanding subsection (1), an application for an access licence for commercial or potential commercial purposes shall enter into a benefit sharing agreement under section 24A.

Information for the application for an access licence.

the identity of the User and the documents which testify to his legal capacity to contract;

the details of the User's proposed access activity, which shall include:

the biological resources or traditional knowledge associated with biological resources to which access is sought, including the intended uses;

the precise sites where the access activity is to be undertaken or where the resource is located, including where relevant the status of the land according to the categorisation as specified in section 16, as well as, the places where the proposed research and development activities will be carried out;

environmental and socio-economic impact assessment covering the likely long term impacts, where appropriate;

The Director may request additional information or document as he deems necessary.

Application fee.