Malaysia legislation
Section 23
of ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017
Section 23
(a)
a biological resource on land to which such indigenous community and local community have a right as established by law; and
Access to Biological Resources and Benefit Sharing 29
(b)
traditional knowledge associated with a biological resource that is held by such indigenous community and local community.
(2)
The prior informed consent of indigenous community and local community shall be obtained in accordance with customary laws and practices, protocols and procedures of indigenous community and local community, as the case may be.
(3)
Any person who intends to access the biological resource or traditional knowledge in subsection (1) for commercial or potential commercial purposes under subsection 12(1) shall enter into a benefit sharing agreement with the relevant indigenous community and local community.
(4)
Any prior informed consent shall be obtained from and benefit sharing agreement entered into with—
(a)
the representative, organisation or body identified in accordance with the customary laws and practices, protocols and procedures of the said indigenous community and local community; or
(b)
where no such representative or organisation of the traditional knowledge associated with a biological resource can be identified—
(i)
with the holders of the traditional knowledge associated with a biological resource within the indigenous community and local community; or
(ii)
with the Federal Government or State Authority, as the case may be, if the holders of the traditional knowledge associated with a biological resource cannot be identified.
(5)
Any monetary benefit obtained from the benefit sharing agreement entered under subparagraph (4)(b)(ii) shall be deposited into a fund as may be established by the Federal or the State Government and any benefit, including where applicable non-monetary benefit, shall be applied for the interest of indigenous community and local community taking into account the advice of the advisory body established under subsection 9(2).
Act 795
(6)
Where the same traditional knowledge associated with a biological resource is shared by more than one indigenous or local community—
(a)
the applicant shall obtain the prior informed consent of and enter into benefit sharing agreement with the duly identified representative or organization of all the holders of the traditional knowledge associated with the biological resource; or
(b)
where it is not practicable in all the circumstances of the case to ascertain all such holders, and this is proven to the satisfaction of the Competent Authority, the applicant shall obtain the prior informed consent of, and enter into the benefit sharing agreement with the duly identified representatives or organisation of such of the holders as the applicant may ascertain.
(7)
In the event that there is a claim by any indigenous community and local community that it is the rightful holder of the traditional knowledge associated with a biological resource after the application is approved, the Competent Authority shall—
(a)
determine the said claim in consultation with the indigenous community and local community whose prior informed consent has been obtained and benefit sharing agreement entered into;
(b)
if the claim is proven to the satisfaction of the Competent
Authority, declare that the said indigenous community and local community is entitled to share the benefits due to the indigenous community and local community under the benefit sharing agreement; and
(c)
determine the quantum or nature of benefits to which the indigenous community and local community is entitled under paragraph (b), in consultation with all the indigenous community and local community concerned.
Access to Biological Resources and Benefit Sharing 31