Northern Territory Explanatory Statements

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BIOLOGICAL RESOURCES BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR BUSINESS AND ECONOMIC DEVELOPMENT

BIOLOGICAL RESOURCES BILL 2006
SERIAL NO. 69
EXPLANATORY STATEMENT


General Outline

The purpose of this Bill is to:
· provide for a new act, the Biological Resources Act 2006;
· provide a mechanism to regulate access to biological resources in the Northern Territory for the purposes of bioprospecting;
· to ensure that bioprospecting activities are undertaken with the prior informed consent of the resource access provider;
· to ensure that traditional Indigenous knowledge is appropriately recognised; and
· to ensure that a proportion of the benefits from any commercial outcome are returned to the resources access provider.

Notes on Clauses

Clause 1 Short Title

This Act may be cited as the Biological Resources Act 2006.

Clause 2 Commencement

This Act commences on the date fixed by the Administrator by notice in the Gazette.

Clause 3 Object of Act

The object of the Act is to facilitate bioprospecting in the Northern Territory. This is to be achieved by; promoting the conservation of biological resources in the Territory and their ecologically sustainable use; by establishing an access regime and a contractual framework; and recognising the special knowledge held by Indigenous persons about those biological resources. The Act also seeks to ensure the social, economic and environmental benefits from the use of these biological resources accrue to the Territory and contribute to a nationally consistent approach to bioprospecting in Australia.

Clause 4 Interpretation

Interpretation, defines the specific terms used in the Act including biodiscovery, which is the research on samples of biological resources or extracts from those samples to discover and exploit genetic biochemical resources. The permit issuing authority may be the agency responsible for issuing permits under the Fisheries Act, the Territory Parks and Wildlife Conservation Act, or any other authority or agency as prescribed. An Indigenous person is defined as a member of the Aboriginal race of Australia, or a descendant of an Indigenous inhabitant of the Torres Strait Islands. A resource has value for humanity if a compound or extract from that resource has an advantage for any field of human endeavour, either directly or indirectly.

Clause 5 Meaning of bioprospecting

Defines bioprospecting as the taking of samples of biological resources existing in situ or maintained in an ex situ collection, for research into any genetic resources or biochemical compounds comprising or contained in the biological resources. For example, the development of a new cancer treatment from a coral found in Northern Territory waters.
A number of activities do not constitute bioprospecting, including: taking of biological resources from an area of land or water by Indigenous people for traditional use; dealing with any biological material of human origin; taking of biological resources that have been cultivated or tended for a purpose other than biodiscovery; taking of biological resources that are available to the public on an unrestricted basis.

The following activities also do not constitute bioprospecting if done for a reason other than biodiscovery: fishing for commerce or recreation; harvesting of wild flowers; taking wild animals or plants for food; collecting peat or firewood; taking essential oils from wild plants; collecting plant reproductive material for propagation; and commercial forestry.

Clause 6 Resource access provider

The resource access provider for biological resources in the Territory is:
· the Territory if it is Crown land, a pastoral lease under the Pastoral Land Act, a lease subject to the Special Purposes Lease Act, or Territory waters;
· the owner of the fee simple if the land is freehold;
· the owner of the fee simple for land held under Parks freehold title, which will be the relevant Park Land Trust;
· the owner of the fee simple for Aboriginal land, which will be the Aboriginal Land Trust;
· the owner of the fee simple for an Aboriginal community living area, which will be an association or an Aboriginal association; or
· the registered native title body corporate in the case of land subject to Native Title (exclusive possession).

Physical access is granted by the person who controls physical access to the area, for example, the leaseholder or tenant of the area.

Clause 7 Meaning of biodiversity

Biodiversity is the natural diversity of biological resources together with environmental conditions necessary for their survival. This includes landforms, soils, water, and different types of communities formed by living organisms, the species and the genes within each species.

Clause 8 Act binds Crown

This Act binds the Crown in the right of the Territory and so far as the legislative power of the Legislative Assembly permits the Crown in all its other capacities.

Clause 9 Where Act applies

This Act applies to all areas of land and sea, including the air above the water and the seabed or riverbed below the water, in the Territory. This excludes areas controlled by the Commonwealth within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, such as, for example, Kakadu. This Act also applies to Territory biological resources outside the Territory, to the extent of the extraterritorial legislative competence of the Legislative Assembly.

Clause 10 Exemption for specified biological resources or collections

The Minister may declare that this Act does not apply to specified biological resources or a specified collection of biological resources if the resources are held away from their natural environment and administered consistent with this Act, or the use of those resources is controlled under any international agreement to which Australia is a party. For example, seed collections held by the Northern Territory Government, or Northern Territory plants held by the Kew Gardens. A holder of such biological resources may request that the Minister make a declaration so that the Act does not apply. Such a declaration must be published in the Gazette and may only apply in certain circumstances.

Clause 11 Application for permit

A person who wishes to bioprospect in the Northern Territory must apply for a permit from the relevant permit issuing authority, which may be Parks and Wildlife or the Fisheries Group.
Clause 12 Process in relation to permit

Permit issuing authority (for example the Fisheries Group or the Territory Parks and Wildlife Commission) must refer a permit application to the Chief Executive Officer (CEO) (of the Agency with responsibility for this Act) if: the application is to take biological material; it is appropriate to issue the permit; and the activities could be considered to be bioprospecting. The permit issuing authority must also tell the applicant that the application has in-principle approval, pending consideration by the CEO for bioprospecting matters.

Clause 13 CEO to consider application

Provides that the CEO must consider an application that is referred by the permit issuing authority. The CEO must advise the permit issuing authority if the activities are bioprospecting. If the application is for bioprospecting, clauses 15 to 23 apply.

Clause 14 Assessment of applications

Provides that the CEO may consult any department, agency, body, or person for information relevant to an application. A person or body who provides information in good faith will not be liable, either civilly or criminally. For example, a person or body may provide examples of past dealings with the applicant that indicate the applicant is not likely to honour commitments under an agreement.

Clause 15 CEO may require further information

Provides that the CEO may require further information from the applicant to consider an application to take biological resources for bioprospecting. The purpose of this is to allow the CEO to make an informed decision as to whether or not to enter into an agreement.

Clause 16 If resource access provider is Territory

If the resources access provider is the Territory, the CEO is responsible for entering into a benefit sharing agreement with the applicant.

Clause 17 Matters CEO may consider

Provides that the CEO must not enter into a benefit sharing agreement unless the CEO is satisfied that the Territory will receive a benefit under the agreement. The CEO may also consider the reputation of the applicant when deciding whether or not to issue a permit. For example, the CEO may chose not to enter into a benefit sharing agreement with an applicant with a reputation of ecologically unsustainable practices.

Clause 18 – If no agreement is entered into

If no agreement between the CEO and the bioprospector is reached, the CEO must advise the permit issuing authority of this fact, and that no permit is to be issued. The CEO must also record in the register that no benefit sharing agreement was entered into and the reason for this.

Clause 19 If resource access provider is not Territory

Provides that if the resource access provider is not the Territory the CEO must advise the applicant of the need to negotiate a benefit sharing agreement that is consistent with this Act, with the resource access provider, before a permit will be issued. The applicant must also certify that the conditions of a benefit sharing agreement under the Act have been met.

Clause 20 CEO to notify permit issuing authority

Provides that the CEO is to notify the permit issuing authority when satisfied that a suitable benefit sharing agreement has been entered into between the resource access provider and the applicant, regardless of who the resource access provider is (eg, the Territory or a private party).

Clause 21 Permit issuing authority may issue permit

Permit issuing authority may issue a permit when they have been advised by the CEO that a benefit sharing agreement has been entered into. The CEO may advise the permit issuing authority of additional conditions that may be appropriate, such as lodgement of voucher specimens.

Clause 22 Permit details to CEO

Provides that the permit issuing authority must provide to the CEO full information about the permit and conditions, or a copy of the permit. The permit issuing authority may then issue the permit, or not issue the permit in light of new information, and request further information. The purpose of this is to enable permit details to be recorded in the register.

Clause 23 Permit details in register

Provides that the CEO must record information about permits issued for this Act in the register. Information must not be included on the register if the CEO believes the information is culturally sensitive or if disclosed could damage a person’s commercial interest, result in risks to the environment, or harm the national interest. The register must contain the following information about the permit: name of the bioprospector, the date it was granted, its term and other particulars that the CEO and bioprospector agree may be disclosed to the public. The register must also contain details of permits refused by the permit issuing authority and the reason for the refusal.
The register is to be maintained for reporting purposes, for the preparation of certificates of provenance, and to maintain details about applicants for future reference.

Clause 24 When samples taken

Provides that once the bioprospector has collected samples he or she must advise the permit issuing authority of this fact, and provide details of the sample, including: the date it was collected, location, species and quantity that was taken. If it is a condition of permit the bioprospector must also lodge voucher samples with either the Territory Herbarium or the Museum of Arts and Sciences as appropriate, and advise the permit issuing authority of the date the samples were lodged. For example, there may be some variation in the number of samples or species collected, the size of the sample, and the location from which samples were taken.

Clause 25 Information to CEO

Permit issuing authority must provide the CEO with details of samples taken. The permit issuing authority must also inform the CEO if the authority is satisfied the bioprospector has complied with the permit conditions. This information can be used to determine if permit conditions have been met, and may be used to assess future applicants and in issuing certificates of provenance.

Clause 26 CEO to enter details in register

Provides that the CEO must enter the details provided by the permit issuing authority into the register. This provides information for use in certificates of provenance, assessing future applications, and also for reporting of bioprospecting activity in the Northern Territory.

Clause 27 Benefit sharing agreement required

Requires that a benefit sharing agreement be established between the bioprospector and each resource access provider in relation to the resources taken under a permit. The Minister may publish in the Gazette a model benefit sharing agreement as a guide for applicants. A benefit sharing agreement will not be valid without prior informed consent to the agreement.

Clause 28 Informed consent

Provides that the resource access provider must give prior informed consent to a benefit sharing agreement concerning bioprospecting, and this must be demonstrated to the CEO. That is, the bioprospector must inform the resource access provider of the purpose of the bioprospecting activities, prior to entering into any agreement. The CEO must consider if the resource access provider had adequate knowledge of the Act and was able to enter into reasonable negotiations about the benefit sharing agreement, if the resource access provider had adequate time, and sought independent legal advice. Note that ‘independent legal advice’ is not mandatory, but will be considered. Also note that ‘independent’ does not necessitate outsourcing for legal advice; a company or organisation may have internal legal expertise.

Clause 29 Benefit sharing agreements

Provides that benefit sharing agreement must provide for reasonable benefit sharing arrangements, including protection, recognition, and valuing of any Indigenous people’s knowledge to be used. This needs to include full details of the parties (the bioprospector and the resource access provider/s) to the agreements, the details regarding the time and frequency of access to the area that has been granted, as well as information regarding the resources that may be accessed, the quantity of these which can be removed, and the purpose of access. There must also be agreed disposition of ownership in the samples and a statement regarding any use of Indigenous people’s knowledge including details of the source of the knowledge, such as whether the knowledge was obtained from the resource access provider or from another group of Indigenous peoples, and details of benefits provided. There should also be details of benefits to the resource access provider for taking of resources. Knowledge is Indigenous people’s knowledge if it is from Indigenous people, not if it is from scientific or public documents, or is otherwise in the public domain. The purpose of a benefit sharing agreement is to ensure that the resource access provider receives a share of benefits from successful bioprospecting activities resulting from access to those biological resources controlled by the resource access provider.

Clause 30 Retrospectively entering into a benefit sharing agreement

Allows for retrospectively entering into the benefit sharing agreement and applies if a sample of biological resources has been taken not in accordance with this Act, or if a sample initially taken for a purpose other than biodiscovery is later used for biodiscovery. Also provides the method by which a person who holds a sample can bring it under this Act, by advising the CEO and entering into a benefit sharing agreement with the resource access provider for the sample that was taken. This clause is not intended to preclude action under the offence provisions.

Clause 31 Details of benefit sharing agreements in register

Provides that if an agreement is negotiated on behalf of the Territory, the CEO must keep a copy of the agreement in the register. If the resource access provider is not the Territory, the following information must be kept on the register: full details of the parties to the agreement; the details of the times and frequency of entry into the area; the resources of which samples can be taken; quantity of resources; purpose and also the agreed disposition of ownership in the samples. This information may be used in issuing certificates of provenance, for reporting, and for assessing future applications from a bioprospector.

Clause 32 When benefit sharing agreement comes into effect

A benefit sharing agreement relating to biological resources has no effect unless there is a permit for those biological resources, and samples are taken under that permit. If the resource access provider is not the Territory, the bioprospector must give the resource access provider a copy of the permit and advise the resource access provider when samples are taken. This is to prevent bioprospecting without a permit and hence a valid benefit sharing agreement.

Clause 33 Bioprospecting without permit

It is an offence for a bioprospector to take samples of biological resources to which this Act applies without a permit registered with the CEO.

This section provides a penalty for this offence of 500 penalty units.

A person is considered a bioprospector if there is a reasonable likelihood that the biological resources taken by the person will be subject to research and development on any genetic resources or biochemical compounds comprising or contained in the biological resources for the purpose of gain. An example of this may be researching a number of plant samples in the hope of finding a compound that can be used in the manufacture of a new type of medicine.

Clause 34 Giving false information

Provides that it is an offence for a person to knowingly give information that is false or misleading, in particular when making an application to a permit issuing authority or in providing information to the CEO.

This section provides a penalty for this offence of 500 penalty units.

Clause 35 Breach of permit conditions

Provides that it is an offence for the bioprospector to breach the conditions of the permit registered with the CEO.

This section provides a penalty for this offence of 500 penalty units.

Clause 36 Breach of benefit sharing agreement

Provides that it is an offence for a person to breach the terms of a benefit sharing agreement under this Act. This applies regardless of whether or not the resource access provider if the Northern Territory of a private person or entity.

This section provides a penalty for this offence of 500 penalty units.

Clause 37 CEO to maintain register

Provides that the CEO must maintain a register of information about the permit issued by permit issuing authorities relating to biodiscovery, samples collected under those permits, and benefit sharing agreements. The information held in the register will be used for purposes such as issuing certificates of provenance, statistical analysis, reporting, and assessment of future applications from bioprospectors (particularly in the instance of a bioprospector not meeting conditions of a permit or benefit sharing agreement).

Clause 38 CEO to make some details from register available

The CEO may make available certain information from the register for reporting to the Legislative Assembly or for providing statistics in relation to biodiscovery in the Territory. This information must not include any information that is confidential.

Clause 39 Bioprospector to keep records

Provides that a person issued a permit in relation to bioprospecting must keep records for each sample taken. This includes records about where the sample was taken, the date, approximate indication of quantity and size of the sample, scientific name of or given to the sample, location of the sample when first entered in the record and the details of any subsequent disposition of the sample. The purpose of this is to keep records of activities under a permit, and matching samples with a specific permit. It is an offence not to comply.

This section provides a maximum penalty for this offence of 100 penalty units.

A copy of the records must be sent to each resource access provider, the permit issuing authority, and the CEO within a reasonable timeframe. It is an offence not to comply.

This section provides a maximum penalty for this offence of 100 penalty units.

A record for the sample must be retained by the Bioprospector while the sample is in the bioprospector’s possession, in order to link the sample with the permit and benefit sharing agreement. It is an offence not to comply.

This section provides a maximum penalty for this offence of 100 penalty units.

Clause 40 Disposal of samples

Provides that if a bioprospector does not propose to keep a sample for which he or she has a record, the bioprospector must offer the sample and the record to each resource access provider. It is an offence not to comply.

This section provides a maximum penalty for this offence of 100 penalty units.

If no resource access provider wishes to take the sample and the record, the bioprospector may dispose of the sample and must also send the record and details of the disposal to the CEO. It is an offence not to comply.

This section provides a maximum penalty for this offence of 100 penalty units.

Clause 41 Holder of rights to sample may request certificate

Allows that a person who takes a sample of biological resources in accordance with this Act, or a successor in title to such a sample or extract from the sample, may request a certificate of provenance from the CEO showing that the sample was properly obtained in accordance with this Act. An application must include the unique identifier allocated to the sample and proof that the applicant has the right title in relation to the sample or extract.

Clause 42 Certificate of provenance

Allows for the CEO to issue a certificate of provenance in relation to an identified sample of biological resources. This is an original document issued by the Territory that states that, consistent with Australia’s international obligations, the biological resources or extracts were collected under a permit requiring minimal negative impacts on biodiversity, with prior informed consent of resource access providers, and under a mutually agreed benefit sharing agreement. Certificate of provenance must also contain the unique identifier, the date the certificate was issued, as well as a description of the sample, the general geographic region from where the sample was taken, the date it was taken, the quantity and the identifying number of the permit under which the sample was taken. Details of a certificate of provenance must be included in the register.

Clause 43 Revocation of certificate of provenance

The CEO may revoke a certificate of provenance if the CEO becomes aware of circumstances under with a certificate of provenance would not have been issued if known. For example, evidence may come to light that the samples were collected in a manner not in accordance with the permit conditions, or that the benefit sharing agreement was breached. The CEO may publish details of a revocation in the Gazette or by any other manner.

Clause 44 No exclusive rights to biological resources

No exclusive rights or access to a biological resource result from the issue of a permit or entering into a benefit sharing agreement by a resource access provider. The CEO may not enter into an exclusive agreement. A resource access provider other than the Northern Territory may wish to enter into an exclusive agreement with a bioprospector.

Clause 45 Pre-existing benefit sharing agreements

Provides that benefit sharing agreements entered into between the Territory and a bioprospector before the commencement of this Act are considered to be under the Act and must be entered into the register by the CEO.

Clause 46 – Delegation

Allows that the CEO may delegate, in writing, to an employee (within the meaning of the Public Sector Employment and Management Act) any of the CEO’s powers and functions under this Act or the Regulations.

Clause 47 Regulations

Allows for the Administrator to make regulations under this Act. These may deal with the disposition of ownership in samples including: any details of proposed transmissions to third parties; prescribed fees payable; for an offence under the regulations, prescribe a fine not exceeding 200 penalty units; provide for an offence under this Act to be a regulatory offence; and provide for the enforcement of a code of practice. These regulations may also provide for the payment of a prescribed amount rather than a penalty which may otherwise be imposed for an offence against this Act, and the service of a notice relating to payment of an amount for such an offence.

 

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