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Malaysia’s Access to Biological Resources and Benefit Sharing Bill 2017 (“ABS Bill”)

The ABS bill aims to regulate the dealing with access to biological resources and traditional knowledge associated with biological resources, the sharing of benefits arising from their utilization and other related matters. The Access to Biological Resources and Benefit Sharing Bill 2017 has been passed on 1 August 2017 by the House of Representatives in Malaysia’s Parliament in implementation of the United Nations Convention on Biological Diversity which will also paves the way for ratifying the Nagoya Protocol 2010.

The important features under the ABS Bill include:

(i) National Competent Authority

The ABS Bill provides for the establishment of a national competent authority to coordinate the implementation and enforcement of the access and benefit sharing system by the competent authorities i.e. the regional authority having jurisdiction over all matters relating to access to a biological resource in specific region under consultation and advice of the national competent authority.

(ii) Prior Informed Consent

An application for an access to biological resource or traditional knowledge associated with a biological resources is required to obtain prior informed consent of the indigenous and local communities in accordance with customary laws and practices, protocols and procedures of indigenous and local communities before a resources is accessed. Where the application is commercial in nature (or potentially commercial), the applicant shall enter into a benefit sharing agreement with the relevant indigenous and local community which shall sets out the term, inter alia, that any monetary benefit obtained from the said benefit sharing agreement shall be deposited into a fund as may be established by the Federal or the State Government and any benefit shall be applied for the interest of indigenous and local communities (which may includes non-monetary benefit) taking into account the advice of the advisory body established by the competent authority.

(iii) Legal protection for the traditional knowledge of indigenous communities and local communities

The ABS Bill accorded legal protection for the traditional knowledge of indigenous and local communities via the following means:

a) the application to access a biological resource or traditional knowledge associated with a biological resource may be approved by the competent authority if the said application, among others, 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 and local communities;
b) the requirement of prior informed consent and benefit sharing agreement as mentioned in paragraph (ii) above; and

c) in the event that that there is a claim by any indigenous and local community that it is the rightful holder of the traditional knowledge associated with a biological resource after the application to access the same is approved, the competent authority shall determine the quantum or nature of benefits to which the indigenous and local community is entitled under the benefit sharing agreement, in consultation with all the indigenous and local communities concerned, upon satisfaction that:
 prior informed consent and benefit sharing agreement has been entered into; and
 the said indigenous and local community is entitled to share the benefits due to the indigenous and local community under the benefit sharing agreement.

(iv) Notification of a Patent Application

Whenever a patent is applied for biological resource or traditional knowledge associated with a biological resource accessed through the access and benefit sharing system, the applicant of the said patent shall notify to the national competent authority in writing within thirty (30) days from the date of the application, failing of which the individual shall be subjected to a fine not exceeding one hundred thousand ringgit (RM100,100.00) or to imprisonment for a term not exceeding seven (7) years, or to a fine of not exceeding five hundred thousand ringgit (RM500,00.00) for a body corporate.

According to the National Biodiversity Index, Malaysia is ranked twelfth (12th) in the world’s megadiverse countries due to its rich diversity of animals and plants. The implementation of the Access to Biological Resources and Benefit Sharing Bill 2017 is a significant step to regulate the use of biological resources, addressing the issues of stealing of biological resources of a country without its consent by foreign corporations and persons and ensure sustainable utilization of bio-resources as a whole.

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