Bioprospecting Advisory Commission; Established
Establishes a moratorium on bioprospecting and a temporary bioprospecting advisory commission to address issues related to bioprospecting, including equitable benefit sharing. Appropriates funds. (SB643 SD2)
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
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.
The legislature finds that Hawaii's biological diversity and biological resources are assets of the public trust that are culturally, economically, medicinally, spiritually and otherwise significant to the general public and native Hawaiians.
The legislature further finds that the biological diversity and biological resources of the trust 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.
The legislature further finds that the Hawaiian people have customarily used Hawaii's biological resources in accordance with their traditional, cultural, and subsistence practices, including agriculture, fisheries, health, and horticulture. The legislature further finds that the Hawaiian people 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.
The legislature also finds that Hawaii is experiencing a tremendous loss of biodiversity due to the conversion of natural habitat for development, environmental degradation, and nonsustainable consumptive practices. The legislature further finds that the State of Hawaii 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 sale or transfer of the biological diversity and the biological resources of the trust 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, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.
"Bioprospecting" means the collection, removal, or use of biological and genetic resources of any organism, mineral, or other organic substance found within the ceded land trust 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.
"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 its potential to meet the needs and aspirations of present and future generations.
"Trust lands" means public lands as defined in section 171-2, Hawaii Revised Statutes, excluding lands to which the University of Hawaii holds title, and ocean resources under state jurisdiction.
SECTION 3. (a) Except as provided in subsection (b), and notwithstanding any provision in title 12, Hawaii Revised Statutes, or any other law to the contrary, upon the effective date of this Act, the sale or transfer of the biological resources and biological diversity on trust lands is prohibited.
(b) This section shall not apply to the sale or transfer of biological resources and biological diversity on trust lands by the University of Hawaii, including any employee, faculty member, officer, or other personnel employed by the University.
(c) Any person who violates this section shall be fined not more than $ for each separate offense. Each date of violation shall constitute a separate offense. Any action taken to impose or collect the penalty provided for in this subsection shall be considered a civil action.
SECTION 4. (a) There is established the temporary bioprospecting advisory commission to develop a comprehensive plan for the preservation and use of the biological diversity and biological resources of the trust lands. The commission shall be placed within the office of Hawaiian affairs for administrative purposes. The commission shall be exempt from section 26-34, Hawaii Revised Statutes. The office of Hawaiian affairs shall provide staff and technical support for the commission.
(b) The commission shall be composed of ten 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) Five members representing native Hawaiians who have a demonstrated background in traditional and customary use of biological and/or genetic resources, the preservation of biological and/or genetic resources, indigenous and traditional technologies, or scientific and legal procedures for the protection or commercialization of biological and genetic resources, 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 Hawaiian organizations; and
(6) A representative of the biotechnology industry whose principal place of business is in the State of Hawaii 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 members of Hawaii-based biotechnology industry.
The members shall elect one from among themselves to serve as chairperson of the commission.
(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 fair and equitable sharing of benefits arising from the use of genetic resources and the meaningful participation in these processes by the traditional knowledge holders;
(2) Review the policies, laws, and models of other jurisdictions; and
(3) Prepare a comprehensive report addressing the issues in paragraphs (1) and (2) and propose appropriate legislation.
(d) The commission shall perform its duties as follows:
(1) Members shall serve without compensation; provided that members may be reimbursed for reasonable 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, and all actions of the commission shall require the affirmative vote of a majority of the members present; and
(3) The commission may hold public hearings as frequently as deemed necessary and feasible to receive testimony on issues relative 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 2004. The commission shall submit a final report of its findings and recommendations, including proposed legislation, to the legislature and the governor no later than twenty days before the convening of the regular session of 2005.
(f) The commission shall cease to exist on June 30, 2005.
SECTION 5. This Act does not affect rights and duties that matured, and proceedings that were begun, before its effective date.
SECTION 6. 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 2003-2004, to enable the temporary bioprospecting advisory commission to fulfill its mandate.
SECTION 7. The sum appropriated shall be expended by the office of Hawaiian affairs for the purposes of this Act.
SECTION 8. 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 9. 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 10. This Act shall take effect upon its approval; provided that sections 6 and 7 shall take effect on July 1, 3003; and provided further that this Act shall be repealed on June 30, 3005.