Creates temporary commission on biological diversity until June 30, 2008 to assist in creating a regulatory framework to implement policies and make relevant recommendations to the legislature regarding access to genetic resources and biological diversity in Hawaii. Report to legislature. Appropriations. (HB3046 HD1)

A BILL FOR AN ACT

PART I

SECTION 1. The legislature finds that Hawaii's biological diversity and biological resources are assets of the public land trust that are culturally, spiritually, medicinally, and otherwise significant to native Hawaiians and the general public. Further, Hawaii is experiencing a tremendous loss of biodiversity due to the conversion of natural habitat for development, environmental degradation, and non-sustainable consumptive practices while the State, because of it's trust obligation, is obligated to ensure the preservation, sustainable use, and equitable sharing of benefits of Hawaii's biological resources.

The purpose of this part of the Act is to protect Hawaii's valuable biodiversity by developing a public policy to regulate bioprospecting, to define biodiversity within the public land trust, to ensure that the rights of indigenous knowledge holders are protected, and that benefits are shared fairly.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§   -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Biological diversity" means the variability among living organisms from all sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part, including 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 their derivatives, to make or modify products or processes for specific use.

"Commission" means the temporary advisory commission on biological diversity established by this Act.

"Public lands" means public lands as defined in section 171-2 and includes lands to which the University of Hawaii and Hawaii housing and finance development administration hold title, and biological diversity or organisms, microbe or microbial genomes, genes, genetic material, or similar terms together found on the lands that have been given the status of public lands in this chapter.

"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.

§   -2 Prior informed consent. Access to genetic resources or biological diversity from public lands shall be subject to the obtaining of prior informed consent:

The temporary advisory commission on biological diversity shall adopt rules in accordance with chapter 91 to implement this section.

§   -3 Equitable benefit sharing. There shall be a system of fair and equitable sharing of benefits arising out of the use of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to those technologies. With regard to the system of equitable benefit sharing:

§   -4 Temporary advisory commission on biological diversity. (a) There is established the temporary advisory commission on biological diversity, to be placed within the department of land and natural resources for administrative purposes only, to assist in the creation of a regulatory framework to implement policies and make relevant recommendations to the legislature regarding access to genetic resources and biological diversity. The commission shall be composed of eleven members as follows:

The members shall elect from among themselves one person to serve as chairperson of the commission.

(b) The members of the commission shall serve without compensation but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties.

(c) The temporary advisory commission on biological diversity shall adopt rules in accordance with chapter 91 to implement this section.

(d) The commission shall submit an interim report of its findings and recommendations to the legislature and the governor no later than twenty days prior to the convening of the regular session of 2007. The commission shall submit a final 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 2008.

(e) The commission shall cease to exist on June 30, 2008."

SECTION 3. 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 2006-2007 to enable the temporary advisory commission on biological diversity to fulfill its mandate pursuant to this part of the Act.

The sum appropriated shall be expended by the department of land and natural resources for the purposes of this part.

PART II

SECTION 4. The legislature finds that 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. Hawaii's unique biological diversity and biological resources are assets of a public trust established in article XI, section 1, of the State Constitution and they are culturally, spiritually, medicinally, and otherwise significant to native Hawaiians and the general public. Moreover, 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.

The legislature also finds that 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. The potential economic benefit of these biological resources may create market-driven incentives and generate financial resources for the conservation and sustainable development of Hawaii's biological resources.

Under the department of land and natural resources' current permit process, the State of Hawaii has no opportunity to participate or benefit from discoveries that may be made using materials lawfully collected from public lands and waters. The residents of Hawaii, as well as the research community and growing biotechnology industry, will benefit from the development and implementation of policy and legislation codifying a statutory framework for the use of Hawaii' biological resources for research and commercial development. There is a need to develop policy and legislation that will allow the State and native Hawaiians to participate in the conservation and sustainable development of Hawaii's biological resources and derive benefits from research and commercialization of those resources. By ensuring best practices and bio-safety protocols, an environment can be created that will maximize the educational, research, and career opportunities for the residents of Hawaii.

The purpose of this part of the Act is to provide the statutory framework within which the State can actively participate in the sustainable development and use of biological resources found in Hawaii.

SECTION 5. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§   -1 Definitions. As used in this chapter, unless the context clearly otherwise requires:

"Benefit sharing" means all forms of compensation for the use of genetic resources, whether monetary or non-monetary, and includes, in particular, the participation in scientific research and development on genetic resources and the making available of the results of such scientific research and development.

"Biodiversity" means all living organisms in the state.

"Biological resources" means all biodiversity in the state, including their genetic material or progeny, and any derivatives of living organisms.

"Bioprospecting" means the exploration for commercially valuable biological resources.

"Biotechnology" means any technological application that uses biological systems or living organisms.

"Department" means the department of land and natural resources.

"License" means a right to make, use, or sell products containing biological resources.

"Licensing revenue" means any form of consideration paid or transferred to the holder of a license in exchange for granting of a license.

"Microbial" means microscopic life forms, including but not limited to bacteria.

"Permittee" means a party lawfully granted a permit from the department of land and natural resources.

"Prior informed consent" means consent of the department, as appropriate, to access, sample, and develop biological resources.

"Public lands" means public lands as defined in section 171-2 and includes submerged lands and lands to which the University of Hawaii holds title, and ocean resources under state jurisdiction.

"Sustainable use" means the use of components of biodiversity in a way and at a rate that does not lead to the long-term decline of biodiversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.

§   -2 Use of biological resources; permit system. The department shall adopt rules in accordance with chapter 91 to create a permitting system for the collection and use of any biological resource derived from lands and waters of the State. The permit system shall provide for:

§   -3 Database. (a) The department shall implement a worldwide web-enabled, electronic database for the processing and tracking of collection permits and biological resources collected. At a minimum, this database shall provide documentation on active permits, including:

(4) The location of the collected material.

(b) Discoveries disclosed to the department by a permitee shall be recorded in the database. The department shall evaluate these discoveries and contract with appropriate technological and legal expertise to provide licenses for the use of the State's biological resources. The department may enter into agreements to grant licenses.

§   -4 Revenues; distribution; ceded lands. Revenues from the licensing of any biological resources collected under permit in the State shall first be distributed to the department for the cost of licensing and permitting expenses. Using the United Nations Convention on Biodiversity as a model, the department shall apply licensing revenue to efforts affecting the conservation and sustainable use of the natural resources of Hawaii. In addition, a portion of the revenues shall be earmarked specifically for use in the geographic areas from which the licensed biological resources were collected.

(b) Notwithstanding the distribution of revenue in subsection (a), if the source of a licensed biological resource is collected from ceded lands, any revenue collected after reimbursement of licensing expenses to the department shall be placed in a special account, the purpose of which shall be to hold the monetary benefits derived directly from ceded lands until such time that the distribution of that revenue is determined by the legislature.

§   -5 Native Hawaiian rights. Nothing in this chapter shall be interpreted to prevent native Hawaiians from exercising the rights conferred in article XII, section 7, of the State Constitution and sections 1-1 and 7-1."

SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $250,000 or so much thereof as may be necessary for fiscal year 2006-2007 for the department of land and natural resources to implement the database pursuant to chapter     , Hawaii Revised Statutes, including funding one permanent, full-time position to oversee the development and implementation of the database and to train other users.

The sum appropriated shall be expended by the department of land and natural resources for the purposes of this part of the Act.

PART III

SECTION 7. This Act shall take effect upon its approval; provided that:

(1) Part I shall be repealed on June 30, 2008;