HB247 HD1

Report Title:

Bioprospecting; LRB Study

Description:

Prohibits the exclusive possession of, or conveyance of rights, interests, and title to, biological resources on public lands; requires LRB to conduct a study on the disposition of biological resources. (HB247 HD1)

HOUSE OF REPRESENTATIVES	H.B. NO.	247
TWENTY-THIRD LEGISLATURE, 2005		H.D. 1
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.

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, provides that all marine waters of the State are constituted a marine life conservation area to be administered by the department of land and natural resources.

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) The 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, including the areas of 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;

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

(8) Pursuant to this well-established trust obligation, the legislature has the fiduciary duty to protect and preserve the public trust resources and must prevent all breaches of the trust obligation;

(9) The University of Hawaii has entered into material transfer agreements with private parties, which purport to transfer the title and ownership of the state's natural, biological, and genetic resources and the right to benefit from those material resources through commercialization without the knowledge and consent of the legislature; and

(10) The University of Hawaii's negotiated material transfer agreements may not have protected the State's natural, biological, and genetic resources, and where the legislature has never relinquished its fiduciary duty or its trust obligation regarding public natural resources, through any legislative Act, to the University of Hawaii.

The purpose of this Act is to prohibit the exclusive possession of, or conveyance of rights, interest, and title to, the biological resources identified on or collected from public lands, except under certain circumstances. In addition, this Act requires the legislative reference bureau to conduct a study on the fair and equitable sharing of benefits arising from research, intellectual knowledge, or application of biological resources to assist in the formation of a public policy strategy to commercially develop the state's biological resources that will be environmentally sustainable, culturally sensitive, economically feasible, and mutually beneficial to all the people of the state. The study shall include:

(1) Identification and development of issues and policies for:

(A) The conservation and sustainable use of biological diversity;

(B) The responsible regulation of bioprospecting and biotechnology;

(D) The fair and equitable sharing of benefits arising from the research, intellectual knowledge, or application of biological resources; and

(E) The meaningful participation in these processes by traditional, indigenous knowledge holders;

(2) Reviews of policies, laws, litigation and outcomes,

and models of other jurisdictions;

(3) Preparation of a report addressing the issues in

paragraphs (1) and (2) and appropriate legislative

proposals; and

(4) Compilation of an inventory of current biotechnology

research projects and activities in the state.

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.

"Public lands" means all lands or interest therein in the state classed as government or crown lands previous to August 15, 1895, or acquired or reserved by the government upon or subsequent to that date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner, including accreted lands not otherwise awarded, submerged lands, and lands beneath tidal waters that are suitable for reclamation, together with reclaimed lands that have been given the status of public lands under chapter 171, Hawaii Revised Statutes, inclusive of:

(1) Lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

(2) Lands set aside pursuant to law for the use of the United States;

(3) Lands being used for roads and streets;

(4) Lands to which the United States relinquished the absolute fee and ownership under section 91 of the Hawaii Organic Act prior to the admission of Hawaii as a state of the United States, unless subsequently placed under the control of the board of land and natural resources and given the status of public lands in accordance with the State Constitution, the Hawaii Homes Commission Act, 1920, as amended, or other laws;

(5) Lands to which the University of Hawaii holds title;

(6) Lands to which the housing and community development corporation of Hawaii in its corporate capacity holds title;

(7) Lands to which the Hawaii community development authority in its corporate capacity holds title;

(8) Lands to which the department of agriculture holds title by way of foreclosure, voluntary surrender, or otherwise, to recover moneys loaned or to recover debts otherwise owed the department under chapter 167;

(9) Lands that are set aside by the governor to the Aloha tower development corporation; lands leased to the Aloha Tower development corporation by any department or agency of the State; or lands to which the Aloha Tower development corporation holds title in its corporate capacity;

(10) Lands that are set aside by the governor to the agribusiness development corporation; lands leased to the agribusiness development corporation by any department or agency of the State; or lands to which the agribusiness development corporation in its corporate capacity holds title; and

(11) Lands to which the high technology development corporation in its corporate capacity holds title.

"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, except as authorized under this section, the exclusive possession of, or conveyance of rights, interest, and title to, the biological resources identified on or collected from public lands is prohibited.

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;

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

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

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

(5) Involve permitted or research operations whose products are neither indigenous nor endemic to the state;

and the State may actively seek to enter into and support such agreements to advance biotechnology education, the biological sciences, and medicine in the State; provided that upon the effective date of this Act and thereafter, the University of Hawaii shall not enter into any material transfer agreements to transfer the title and ownership of the State's natural, biological, and genetic resources, and the right to benefit from those material resources through commercialization, to any private entity unless expressly authorized by the legislature through a concurrent resolution adopted by both houses of the legislature.

SECTION 4. (a) The legislative reference bureau shall conduct a study on the fair and equitable sharing of benefits arising from research, intellectual knowledge, or application of biological resources that are public natural resources held in trust by the State for the benefit of the people. The purpose of the study is to assist in the formation of a public policy strategy to commercially develop the state's biological resources that will be environmentally sustainable, culturally sensitive, economically feasible, and mutually beneficial to all the people of the state. The study shall include:

(1) Identification and development of issues and policies for:

(A) The conservation and sustainable use of biological diversity;

(B) The responsible regulation of bioprospecting and biotechnology;

(D) The fair and equitable sharing of benefits arising from the research, intellectual knowledge, or application of biological resources; and

(E) The meaningful participation in these processes by traditional, indigenous knowledge holders;

(2) Reviews of policies, laws, litigation and outcomes,

and models of other jurisdictions;

(3) Preparation of a report addressing the issues in

paragraphs (1) and (2) and appropriate legislative

proposals; and

(4) Compilation of an inventory of current biotechnology

research projects and activities in the state.

(b) The attorney general shall assist the legislative

reference bureau in carrying out this study.

(c) In conducting the study, the legislative reference bureau shall consult with the following individuals, organizations, and interest groups:

(1) Office of Hawaiian affairs;

(2) University of Hawaii;

(3) Department of business, economic development, and tourism;

(4) Department of land and natural resources;

(5) Department of agriculture;

(6) Department of health;

(7) Native Hawaiians or organizations representing native Hawaiian interests;

(8) The biotechnology industry;

(9) Scientists with interests in Hawaiian ecological systems;

(10) Scientists with interests in genetics; and

(11) Any other organizations or persons that the legislative reference bureau deems appropriate.

(d) The legislative reference bureau shall submit a report

of its findings and recommendations, including any proposed

legislation, to the legislature no later than twenty days before the convening of the regular session of 2006.

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. This Act shall take effect upon its approval.