Gurdial Singh Nijar
Last week the Dewan Rakyat passed a bill to curb “biopiracy”. This is the stealing of the biological resources of a country without its consent.Once it becomes law shortly (after the Dewan Negara and the king give their assent), a permit will be required to access our biological resources for research and development; or to access traditional knowledge of indigenous peoples associated with these resources. If it is for a commercial purpose then there must be a benefit-sharing agreement with the resource provider – invariably indigenous and local communities. Or states – who have jurisdiction over state parks and forests. For pure research purposes, for example by universities, there is no need for a benefit sharing agreement.
Crucially, in all cases, the prior informed consent of indigenous and local communities is mandatory when their traditional knowledge associated with the biological resource is taken. For it is their traditional knowledge as to the uses of these resources that are much sought after. Indeed, such knowledge has clothed, fed and healed the world.
The World Health Organisation reports that three-fourths of the drugs in modern medicine are based on leads provided by the traditional knowledge of indigenous peoples and local communities. Even the life-saving anaesthesia – so critical for surgeries – is reportedly based on the traditional knowledge of South American indigenous peoples. They caught monkeys perched high up on trees by shooting them with a dart loaded with plant-based “poison”. Only the monkey’s outer skin would be pierced (so the poison did not contaminate the animal) but the monkey’s bodily functions continued. So rigour mortis would not set it and the monkey would fall to the ground.
In the past corporations, essentially from the North, accessed the resources and the traditional knowledge for free on the basis that they were “the common heritage of mankind”. Developing countries protested because these resources – including seeds which farmers provided to collection centres (mainly in the North) – were then accessed by corporations, turned into products, patented and commercialised. The huge profits reaped were never returned to the holders of the traditional knowledge nor the country from where the resources were accessed. And so, for example, the traditional knowledge of the multi-uses of the neem plant – described by Gandhi as a village pharmacopoeia – was pillaged by Western scientists visiting Indian villages – who patented the precise use of the active ingredients of the bioresource.
Finally, an international Convention on Biodiversity (CBD) was enacted in 1992. It vested the resources in the country and in its people and made it a condition that there must be prior informed consent of the resource provider. Malaysia is a party to the CBD. The CBD’s benefit sharing requirements were reinforced by another international agreement – the Nagoya Protocol of 2010. Malaysia played a pivotal role in the negotiation of this protocol – as a spokesperson for developing countries grouped as the Like Minded Megadiverse Countries.
This bill paves the way for the country to ratify the protocol.
The bill was a long time in the making. Essentially because of our constituent states, which constitutionally have exclusive jurisdiction over land and its resources, were wary of the encroachment of federal authority over their rights. The matter was resolved with the jurisdiction to implement the law being vested entirely in states. The federal government plays a coordinating role. As well as provide the link to international enforcement when a resource illegally taken from the state is developed and patented elsewhere.
Under the Nagoya Protocol, countries who become parties to this treaty must ensure that anyone using biological resources (and the associated traditional knowledge) or applying for rights over products created from this use, has acquired the resource legally from the country of origin. Else, the country will be subjected to compliance measures. This is an added value for our states as only parties (read, the federal government) can be a party to the protocol to avail itself of these enforcement measures. So, if someone steals a resource or associated traditional knowledge and seeks later to patent or commercialise a product developed from the resource in a foreign country, then it must prove that it has acquired the resource legally in compliance with our laws. The foreign country which is a party to the protocol is obliged to put in place measures that will prevent any illegal use.
This is indeed a significant step forward in ensuring that we as a country, and indigenous and local communities, do not lose benefits arising from the pirating of our resources and traditional knowledge by foreign corporations and persons.
That this illegal taking could well result in huge losses can be illustrated by a recent example. A US researcher patented a fungus which has the potential to treat a recurring disease of the oil palm. This translates into huge potential value. He collected the resource on a visit to a research university in Malaysia. He refuses to acknowledge that he needs to get our consent nor come to a benefit sharing arrangement.
Biopiracy has been a worldwide phenomenon. The San indigenous people had their traditional knowledge of the hoodia plant accessed for treating obesity. The indigenous people were by-passed entirely. Neither their consent was sought, nor any benefits accrued to them. They had to fight long and hard to secure benefits. Turmeric and basmati rice – all have been misappropriated in a similar fashion. There are many other examples. The Nagoya Protocol is focused on staunching these thefts.
Malaysia is rich in bio resources. We are among the 12 richest biodiversity countries in the world. One of our plants is now in the midst of testing to provide a remedy for AIDS. Modern biotechnology also relies on genetic resources and its derivatives to create new products. We house the oldest rainforest in the world – which stores these resources. Our indigenous peoples are the ones who can unlock the value of these resources with their traditional knowledge as to the use of these biological resources. The renowned Sarawak Biodiversity Centre has been actively carrying out research on biological resources based entirely on the traditional knowledge of indigenous peoples. It has successfully entered into arrangements with companies and researchers to derive benefits if any resultant products are commercialised.
The bill will provide the necessary framework for regulating (and incentivising) research and development – by both foreign as well as local researchers.
In this context, local researchers from public universities and research institutions can freely exchange the materials among themselves for pure research without the need for any additional permit beyond the initial one. Only when a “hit” yields a product will they be required to enter into a benefit sharing agreement.
Overall, this new Access and a Benefit-Sharing law will optimise the benefits accruing to the country, states and indigenous peoples, encourage domestic researchers and provide the necessary financial and technological means for us to promote the conservation and sustainable use of the components of our rich biodiversity.
(Gurdial was the founder-director of the Centre of Excellence for Biodiversity Law, a joint venture between the Ministry of Natural Resources and Environment and Universiti Malaya. The centre was involved in the drafting of the ABS bill. Comments: firstname.lastname@example.org)
Finally, a law to curb biopiracy in Malaysia
Gurdial Singh Nijar