Abstract
Malaysia did not have a law to regulate access to genetic resources, associated traditional knowledge (aTK) and benefit-sharing at a Federal level prior to the Nagoya Protocol. Only two States, Sabah and Sarawak, had such a law. Following the assent of the bill of 2017 regulating access and benefit-sharing (ABS) within the entire territory the country now has a relatively comprehensive law in this area. For instance, besides access measures, it also implements user measures for genetic resources and aTK from other countries utilized in Malaysia, which is at the moment uncommon in legislations of traditional provider countries, except the few EU member States also considered as such. Besides, its implementation of article 4 of the Protocol by exempting all specialized ABS instruments from its scope is exemplary. None of the other legislations interrogated in the current study has so clearly and expressly exempted all specialized international ABS instruments. In addition, it takes a stance concerning genetic resources accessed without prior informed consent (PIC) and mutually agreed terms (MAT) prior to the Protocol requiring them to be regularized if put into new research and development (R&D) uses or used for a new product. This chapter examines this law in a view to find out, inter alia: (1) how the different elements or aspects of the Protocol are implemented domestically, (2) how the bill copes with issues that were unresolved in the Protocol or that have emerged after it e.g. the regulation of Digital Sequence Information, (3) how the different understanding of terminology e.g. ‘commercial’ and ‘non-commercial research’, ‘biological resources’ and ‘genetic resources’ is dealt with and the impact this has on ABS, and (4) whether and how the extension of Malaysian rights over genetic resources is construed. The chapter also examines the general compliance of the regime with the Nagoya Protocol and makes suggestions for improving its weak points.
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Notes
- 1.
Ministry of Natural Resources and Environment (2014), p. 6.
- 2.
- 3.
Ibid.
- 4.
Ibid.
- 5.
Ibid.
- 6.
Malaysia National Biodiversity Policy (1998), p. 7.
- 7.
Ibid.
- 8.
Carrizosa et al. (2004), p. 246.
- 9.
Ibid.
- 10.
Ibid.
- 11.
Ibid.
- 12.
Ibid.
- 13.
SaBC & GDF (2010), p. 4.
- 14.
Nordin et al. (2012), p. 185.
- 15.
Ibid, p. 185 f.
- 16.
Carrizosa et al. (2004), pp. 246, 255.
- 17.
Ibid, p. 246.
- 18.
Ibid, p. 255.
- 19.
Ibid, pp. 252, 255.
- 20.
- 21.
Carrizosa et al. (2004), p. 253.
- 22.
For details of the project see Schriver (2012).
- 23.
Ibid, p. 2.
- 24.
Ibid, p. 11.
- 25.
The Malaysian Act has a broad material scope covering ‘biological resources’ with ‘genetic resources’ subsumed in the former according to its definition in s. 4.
- 26.
Carrizosa et al. (2004), p. 245.
- 27.
Ibid.
- 28.
The scope of material application of the Act to ‘human genetic resources’ is derived from s. 12 (2) (f) and 15 (3) (g) on conditions for a permit application for commercial, commercial potential and non-commercial purposes respectively, which state that the CA may approve the application if it is satisfied that “in the case of access to human genetic resource, its use is not for the purposes contrary to ethical values or the public interest” (stress in bold added). The inclusion of human genetic resources in the scope of an ABS regime is unusual as the CBD expressly excludes them from its scope (see Decision II/11. 2 http://www.cbd.int/decision/cop/default.shtml?id=7084) and hence from the main text itself.
- 29.
Syafira (18 December 2012).
- 30.
See pre-conditions for access to BR and/or aTK of ILCs under Sect. 4.2 below.
- 31.
‘Authorized intermediary’ “means any person named by the applicant for a permit under sections 12 or 15 to take the biological resource or traditional knowledge associated with biological resource on its behalf” (s. 4).
- 32.
(c) the application is not for any threatened taxa; and (d) the application is not for any endemic species, rare species or any species protected under any federal or state law.
- 33.
“… a benefit sharing agreement has been established in accordance with section 22”.
- 34.
“the application is not for commercial or potential commercial purpose”.
- 35.
(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.
- 36.
For the purposes of s. 29, “‘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” (s. 29 (3)).
- 37.
At the time of writing this chapter checkpoints had not been established.
- 38.
To be inspected is any BR, conveyance, machinery, contrivance, equipment, book, record, document or other article as considered necessary.
- 39.
To be verified is the accuracy of records or statements or any information given to an enforcement officer.
- 40.
The term ‘take’ is defined under s. 4 and means collection, harvesting, picking, catching, obtaining etc. of BR. A list of activities involving taking of BR for uses that do not comprise access is provided under s. 5 (2).
- 41.
Nordin et al. (2012), p. 185.
References
Bibliographical Material
Carrizosa S, Brush SB, Wright BD, McGuire PE (eds) (2004) Accessing biodiversity and sharing the benefits: lessons from implementation of the convention on biological diversity. IUCN, Gland, Switzerland and Cambridge, UK
Nordin R, Hassan KH, Zainol ZA, Shapiee R, Jalil F, Witbrodt MA, Hassan MS (2012) Regulating access to genetic resources and the sharing of benefit through the Sarawak access benefit-sharing legislation. Res J Appl Sci 7(3):185–193
SaBC (Sabah Biodiversity Centre) & GDF (Global Diversity Foundation) (2010) ABS and Traditional Knowledge in Sabah. In: Sham MA (ed) Biocultural diversity and conservation learning platform briefing notes, Vol 2. Compiled from a seminar on ABS and Traditional Knowledge in Sabah, 16 March 2009, Kota Kinabalu, Sabah
Online Sources
Schriver C (2012) Institutional arrangements for implementing ABS law and its subsidiary regulations. http://www.ketsa.gov.my/ms-my/Documents/Pengumuman/Final%20Report%20IA_ABS_Draft.pdf. Accessed 14 Oct 2020
Syafira S (2012 December 18) I am drafter: Access and benefit sharing law in Malaysia. http://syafi-ct.blogspot.com/2012/12/i-am-drafter-access-and-benefit-sharing.html. Accessed 26 Nov 2020
Policy Documents and Legislation
Access to Biological Resources and Benefit Sharing Act 795 of 2017. Available at http://extwprlegs1.fao.org/docs/pdf/mal176890.pdf. Accessed 12 Oct 2020
Malaysia National Biodiversity Policy (1998) https://www.cbd.int/doc/meetings/nbsap/nbsapcbw-seasi-01/other/nbsapcbw-seasi-01-my-en.pdf. Accessed 10 Oct 2020
Ministry of Natural Resources and Environment (2014) National Biodiversity Planning to Support the Implementation of the CBD 2011–2020 Strategic Plan in Malaysia (NBSAP). https://www.informea.org/en/action-plan/malaysia-nbsap-v2-2016. Accessed 10 Oct 2020
Ministry of Natural Resources and Environment (2016) National policy on biological diversity 2016–2025. https://www.cbd.int/doc/world/my/my-nbsap-v2-en.pdf. Accessed 10 Oct 2020
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Kamau, E.C. (2022). The Fastest Animals Are Not the Fastest Over Time: Malaysia Adopts a Comprehensive ABS Legislation After a Long Steady Effort. In: Chege Kamau, E. (eds) Global Transformations in the Use of Biodiversity for Research and Development. Ius Gentium: Comparative Perspectives on Law and Justice, vol 95. Springer, Cham. https://doi.org/10.1007/978-3-030-88711-7_11
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