Biological Resources Act 2006

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

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

The object of this Act is to facilitate bioprospecting in the

Territory.

The object is to be achieved by the following:

promoting the conservation of biological resources in the

Territory and the ecologically sustainable use of those biological resources;

establishing an access regime designed to give certainty and minimise administrative cost for persons seeking to engage in bioprospecting in the Territory;

establishing a contractual framework for benefit-sharing agreements to be entered into between bioprospectors and resource access providers for the use of Territory biological resources to ensure the equitable sharing of benefits arising from the use of those biological resources for biodiscovery;

recognising the special knowledge held by indigenous persons about those biological resources;

seeking to ensure that social, economic and environmental benefits arising from the use of Territory biological resources for biodiscovery accrue to the Territory;

contributing to a nationally consistent approach to bioprospecting in Australia.

In this Act:

Aboriginal land, see section 3(1) of the

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

biodiscovery means research on samples of biological resources, or extracts from those samples, to discover and exploit genetic or biochemical resources of actual or potential value for humanity.

biodiversity, see section 7.

biological resources includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity.

bioprospecting, see section 5.

bioprospector means a person engaged in bioprospecting.

CEO means the Chief Executive Officer (within the meaning of the Public Sector Employment and Management Act 1993) of the Agency administering this Act.

certificate of provenance, see section 36.

ecosystem means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.

genetic resources means any material of plant, animal, microbial or other origin that contains functional units of heredity and has actual or potential value for humanity.

Land Council, see Part III of the Aboriginal

Land Rights (Northern Territory) Act 1976 (Cth).

Land Trust, see Part II of the Aboriginal Land

Rights (Northern Territory) Act 1976 (Cth).

organism includes:

a virus; and

the reproductive material of an organism; and

an organism that has died.

permit issuing authority means any of the following:

the Agency responsible for issuing permits under the Territory

Parks and Wildlife Conservation Act 1976;

the Agency responsible for issuing permits under the Fisheries

Act 1988;

any other body as prescribed.

register means the register maintained by the CEO under section 33.

resource access provider, see section 6.

A person is an indigenous person if the person is:

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 an extract or compound derived from the resource is used, directly or indirectly, with advantage in any field of human endeavour, whether agricultural, industrial, veterinarian, pharmaceutical or other.

Bioprospecting is the taking of samples of biological resources, existing in situ or maintained in an ex situ collection of such resources, for research in relation to any genetic resources, or biochemical compounds, comprising or contained in the biological resources.

However, the following activities do not constitute bioprospecting:

taking biological resources from an area of land or water by indigenous people who have traditionally used the area of land or water in accordance with aboriginal tradition for hunting, food gathering (other than for sale) and for ceremonial and religious purposes;

dealing with any biological material of human origin;

taking samples of biological resources that have been cultivated or tended for a purpose other than biodiscovery and where the samples are not to be used for biodiscovery;

taking samples of biological resources specified in a declaration under section 10;

taking samples of biological resources that are available to the public on an unrestricted basis (whether on commercial or

non-commercial terms);

taking samples of a biological resource that is:

a genetically modified organism for the purposes of section 10 of the Gene Technology Act 2000 (Cth); or

a plant variety for which a Plant Breeder's Right has been granted under section 44 of the Plant Breeder's Rights

Act 1994 (Cth);

taking aquatic life, within the meaning of the Fisheries

Act 1988, that:

has been caught, taken or harvested under a licence or permit granted under that Act (other than a permit granted under section 17 of the Fisheries Act 1988 for bioprospecting); or

comprises a managed fishery or part of a managed fishery within the meaning of that Act.

The following activities, if undertaken for a purpose other than biodiscovery, also do not constitute bioprospecting:

fishing for commerce or recreation, game or charter fishing or collecting broodstock for aquaculture;

harvesting wildflowers;

taking wild animals or plants for food;

collecting peat or firewood;

taking essential oils from wild plants;

collecting plant reproductive material for propagation;

commercial forestry.

In subsection (1):

ex situ collection means a collection of physical samples of genetic resources that have been previously obtained from an in situ location and which are preserved or maintained in a location external to the in situ location.

in situ means the location in which genetic resources exist within ecosystems and natural habitats within the Territory.

Resource access provider, for biological resources in the

Territory to which this Act applies, means the following:

for freehold land – the owner of the fee simple (including where the land is subject to a lesser interest such as a lease or licence);

for Aboriginal land – the owner of the fee simple (the Aboriginal Land Trust established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

for an Aboriginal community living area – the owner of the fee simple (an association within the meaning of the

Associations Act 2003 or an Aboriginal association within the meaning of the Aboriginal Councils and Associations Act 1976 (Cth));

for land subject to Native Title (exclusive possession) – the registered native title body corporate;

for land held under Park freehold title – the owner of the fee simple (the relevant Park Land Trust established under the

Parks and Reserves (Framework for the Future) Act 2003);

for Crown land (including land subject to a Crown term lease or

Crown perpetual lease) – the Territory;

for land subject to a lease under the Special Purposes Lease

Act 1953 – the Territory;

for land subject to a pastoral lease under the Pastoral Land

Act 1992 – the Territory;

for Territory waters – the Territory.

A bioprospector must make any necessary arrangements for physical access to the resource with the person who controls the physical access.

Example for subsection (2)

If the land is the subject of a pastoral lease under the Pastoral Land Act 1992, the resource access provider for the purposes of bioprospecting is the Territory, but physical access must be arranged with the lessee.

Biodiversity means the natural diversity of biological resources, together with the environmental conditions necessary for their survival, and includes the diversity of:

the landforms, soils and water of a region, and the functional relationships that affect environmental conditions within ecosystems (called regional diversity); and

the different types of communities formed by living organisms and the relations between them (called ecosystem diversity);

and

species (called species diversity); and

genes within each species (called genetic diversity).

Part 2 Application of Act

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.

This Act applies throughout the Territory (including the air above, the water and the seabed or riverbed below the water).

Note for subsection (1)

Part 8A of the Environment

Protection and Biodiversity Conservation Regulations 2000 (Cth) applies to Commonwealth areas in the Territory.

Commonwealth areas is defined in section 525 of the Environment Protection and

Biodiversity Conservation Act 1999 (Cth) and, so far as is relevant to the Territory, includes the following:

Each of the following, and any part of it, is a Commonwealth area:

land owned by the

Commonwealth or a Commonwealth agency and airspace over the land;

an area of land held under lease by the Commonwealth or a Commonwealth agency and airspace over the land;

the coastal sea of

Australia or an external Territory;

the continental shelf, and the waters and airspace over the continental shelf;

the waters of the exclusive economic zone, the seabed under those waters and the airspace above those waters;

any other area of land, sea or seabed that is included in a Commonwealth reserve.

Despite paragraphs (1)(d), (e) and (f), none of the following areas (or parts of them) are Commonwealth areas:

the seabed vested in the Northern Territory under section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and

the subsoil under the seabed described in paragraph (b); and

any water and airspace over seabed described in paragraph (b).

This Act also applies outside the Territory, to the extent of the extraterritorial legislative competence of the Legislative

Assembly, in relation to biological resources of Territory origin.

The Minister may declare that this Act does not apply to specified biological resources or a specified collection of biological resources (including future additions to the collection).

Examples for subsection (1)

1. The resources are held away from their natural environment (whether in a collection or otherwise) by an Agency or other body and there are reasonable grounds to believe that bioprospecting of the biological resources is administered by the Agency or body in a manner that is consistent with this Act.

2. Use of the resources (including by way of bioprospecting) is required to be controlled under any international agreement to which Australia is a party.

Note for subsection (1)

Samples of biological material from plants are held by the Northern Territory Herbarium.

Museum and Art Gallery of the Northern Territory.

A holder of biological resources mentioned in subsection (1) may, in writing, request the Minister to make a declaration.

A declaration under subsection (1) may provide that this

Act does not apply to the biological resources in specified circumstances.

A declaration under subsection (1) must be published in the

Gazette.

Part 3 Process

Division 1 Application to take biological resources

A person who wishes to engage in bioprospecting in the Territory must apply to the appropriate permit issuing authority for a permit.

Note

A permit to take aquatic life is issued by the Agency responsible for administering the

Wildlife Conservation Act 1976.

Subsection (2) applies if a permit issuing authority:

receives an application for a permit to take biological material;

and

is satisfied, in terms of the authority's regulatory role, it would be appropriate to issue the permit; and

considers the applicant's proposed activity may comprise bioprospecting.

The authority must:

refer the application to the CEO; and

advise the applicant:

the application is approved in-principle by the authority; and

the application has been referred to the CEO for consideration in relation to bioprospecting matters.