Report Title:

Bioprospecting; advisory commission

Description:

Prohibits the exclusive possession or conveyance of the rights, interest, and title of biological resources on public lands; establishes a temporary bioprospecting advisory commission to address issues related to bioprospecting, including equitable benefit sharing, and appropriates funds to enable the commission to develop a comprehensive bioprospecting plan. (SB643 HD1)

THE SENATE

S.B. NO.

643

TWENTY-SECOND LEGISLATURE, 2003

S.D. 2

STATE OF HAWAII

H.D. 1


 

A BILL FOR AN ACT

 

relating to bioprospecting.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Article XII, section 4, of the State Constitution provides that lands granted to the State by section 5(b) of the Admission Act and pursuant to article XVI, section 7, of the State Constitution, excluding "available lands" as defined by section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public who are co-beneficiaries of the public trust.

Article XI, section 1, of the State Constitution provides that "[a]ll public natural resources are held in trust by the State for the benefit of the people."

Section 190-1, Hawaii Revised Statutes, requires the department of land and natural resources to administer all marine waters of the State as a marine life conservation area.

The legislature finds that:

(1) Hawaii's biological diversity and biological resources are assets of the public trust that are culturally, spiritually, medicinally, and otherwise significant to native Hawaiians and the general public;

(2) Biological diversity and biological resources on public lands are of great potential economic benefit in the areas of medicine, scientific research, biotechnology, and commercial development for native Hawaiians and the general public. If properly regulated, the potential economic benefit of these biological resources can create market-driven incentives and generate financial resources for the conservation and sustainable development of Hawaii's biological resources;

(3) Native Hawaiians have customarily used Hawaii's biological resources in accordance with their traditional, cultural, and subsistence practices, thereby developing a rich body of traditional knowledge, innovations, and practices associated with Hawaii's biological resources, in areas including agriculture, fisheries, health, and horticulture;

(4) Native Hawaiians are traditional, indigenous knowledge-holders with rights, including those recognized in article XII, section 7, of the State Constitution and sections 1-1 and 7-1, Hawaii Revised Statutes;

(5) As traditional, indigenous knowledge-holders, native Hawaiians have rights to protect, preserve, and control the use of their traditional knowledge and associated biological resources;

(6) Hawaii is experiencing a tremendous loss of biodiversity due to the conversion of natural habitat for development, environmental degradation, and nonsustainable consumptive practices; and

(7) The State has a trust obligation to ensure the preservation and sustainable use and equitable sharing of benefits of Hawaii's biological resources.

The purpose of this Act is to prohibit the exclusive possession or conveyance of the rights, interest, and title to the biological resources identified upon or collected from public lands and to establish a temporary bioprospecting commission.

SECTION 2. For the purposes of this Act:

"Biological diversity" means the variability among living organisms from all sources, including but not limited to terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; and including diversity within species, between species, and of ecosystems within the State.

"Biological resources" means biological and genetic resources, including plant material, animals, microorganisms, cells, and genes that exist on the public lands of Hawaii.

"Bioprospecting" means the collection, removal, or use of biological and genetic resources of any organism, mineral, or other organic substance found within the public lands of Hawaii for scientific research or commercial development.

"Biotechnology" means any technological application that uses biological systems, living organisms, or derivatives thereof to make or modify products or processes for specific use.

"Commission" means the bioprospecting advisory commission established in this Act.

"Public lands" means public lands as defined in section 171-2, Hawaii Revised Statues, including submerged lands, and ocean resources under state jurisdiction.

"Sustainable use" means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining the economic and cultural potential of Hawaii's biological trust assets for the mutual benefit of present and future generations.

SECTION 3. Notwithstanding any provision in title 12, Hawaii Revised Statutes, or any other law to the contrary, upon the effective date of this Act, the exclusive possession or conveyance of the rights, interest, and title to the biological resources identified upon or collected from public lands is prohibited, except for existing, permitted farming and research operations whose products are neither indigenous nor endemic to the State, or as set forth below.

Nothing in this section shall be interpreted to inhibit, restrict, or prohibit any research or to prevent the State from entering into joint research or commercial development agreements that:

(1) Protect the State's title to its biological trust resources; and

(2) Ensure best practices and bio-safety protocols; and

(3) Contribute to and support research and educational opportunities for Hawaii's students and faculty; or

(4) Contribute to and support Hawaii's biotechnology industry,

and the State may actively seek to enter into and support such agreements in order to advance biotechnology education, the biological sciences, and medicine in the State.

SECTION 4. (a) There is established a temporary bioprospecting advisory commission to develop a comprehensive plan for the preservation and use of the biological diversity and biological resources on public lands. The commission shall be placed within the department of business, economic development, and tourism for administrative purposes and shall be exempt from section 26-34, Hawaii Revised Statutes. The department of business, economic development, and tourism shall provide staff and technical support for the commission.

(b) The commission shall be comprised of fifteen members as follows:

(1) The chairperson of the board of trustees of the Office of Hawaiian Affairs or the chairperson's designee;

(2) The president of the University of Hawaii or the president's designee;

(3) The director of business, economic development, and tourism or the director's designee;

(4) The chairperson of the board of land and natural resources or the chairperson's designee;

(5) The chairperson of the board of agriculture or the chairperson's designee;

(6) The director of health or the director's designee;

(7) Five members representing native Hawaiians who have a demonstrated background in traditional and customary use of biological or genetic resources, the preservation of biological or genetic resources, indigenous and traditional technologies, or scientific or legal procedures for the protection or commercialization of biological and genetic resources. These five members shall be appointed by the governor from lists of nominees submitted by the president of the senate, the speaker of the house of representatives, and native Hawaiian organizations;

(8) One representative from the biotechnology industry whose principal place of business is in the State, and who shall be appointed by the governor from lists of nominees submitted by the president of the senate, the speaker of the house of representatives, and Hawaii-based representatives of the biotechnology industry;

(9) Two representatives from Hawaii's scientific community as follows:

(A) An ecologist who is familiar with the State's ecosystems; and

(B) A geneticist,

both of whom shall be appointed by the governor from lists of nominees submitted by the president of the senate, the speaker of the house of representatives, and members of Hawaii's scientific community; and

(10) A representative of the Hawaii Institute for Public Affairs.

The commission shall select a chairperson from among its members.

(c) The commission shall:

(1) Identify and develop issues and policies for the conservation and sustainable use of biological diversity, the responsible regulation of bioprospecting and biotechnology, the rights of traditional, indigenous knowledge holders, the fair and equitable sharing of benefits arising from the research, intellectual knowledge, or application of biological resources, and the meaningful participation in these processes by traditional, indigenous knowledge-holders;

(2) Review policies, laws, and models of other jurisdictions;

(3) Prepare a comprehensive report addressing the issues in paragraphs (1) and (2) and propose appropriate

legislation; and

(4) Make an inventory of current biotechnology research projects and activities.

(d) The commission shall perform its duties as follows:

(1) Members shall serve without compensation; provided that members may be reimbursed for reasonable expenses, including travel expenses, incurred in the discharge of their duties;

(2) A simple majority of the members of the commission shall constitute a quorum for the transaction of business, except as otherwise required by chapter 92, Hawaii Revised Statutes;

(3) All meetings of the commission shall be subject to chapter 92, Hawaii Revised Statutes; and

(4) The commission may hold public hearings as feasible and frequently as deemed necessary to receive testimony on issues related to its activities.

(e) The commission shall submit an interim report of its findings and recommendations to the legislature and the governor no later than twenty days before the convening of the regular session of 2005. The commission shall submit a final report of its findings and recommendations, including any proposed legislation, to the legislature and the governor no later than twenty days before the convening of the regular session of 2006.

(f) The commission shall cease to exist on June 30, 2007.

SECTION 5. Nothing in this Act shall be interpreted to prevent the sale or commercial processing of fish, marine and aquaculture products, or agricultural products, including edibles and ornamental flowers.

SECTION 6. Nothing in this Act shall be interpreted to prevent native Hawaiians from exercising the rights referred to in article XII, section 7, of the State Constitution and sections 1-1 and 7-1, Hawaii Revised Statutes.

SECTION 7. This Act does not affect rights and duties that mature, and proceedings that were begun, before its effective date.

SECTION 8. There is appropriated out of the general revenues of the State of Hawaii the sum of $          or so much thereof as may be necessary for fiscal year 2004-2005 to enable the temporary bioprospecting advisory commission to fulfill its mandate.

The sum appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this Act.

SECTION 9. This Act shall take effect upon its approval.