Biodiversity Act Amended

19 Jun 2009
19 Jun 2009

Mushrooms
Important changes were made to the Biodiversity Act at the end of May 2009 and bioprospecting permits are now no longer required for research in the discovery phase of a project involving indigenous biological resources or traditional knowledge.

The Minister (of the Department of Water and Environmental Affairs) must, however, be notified of a project before it commences. RCIPS is establishing the details of this notification procedure and these will be made available on our website as soon as we learn what they are. Commercialisation is triggered when the patenting process reaches full application stage, i.e. on expiry of the 12-month provisional application period

Sandra Clelland of Spoor & Fisher provided the following information on the amendments.

Researchers involved in the discovery phase of a project involving indigenous biological resources or traditional knowledge no longer need to obtain a bioprospecting permit.

The Biodiversity Act (National Environment Management: Biodiversity Act 10 of 2004; "the Act") was amended at the end of May 2009 to specify that bioprospecting permits are only required for the commercialisation phase of bioprospecting projects and/or for export. However, although a permit does not need to be obtained, the Minister (of the Department of Water and Environmental Affairs) must be given notice of a bioprospecting project before the discovery phase begins. An undertaking by the project leaders to comply with the requirements of the Act if the project enters the commercial phase also needs to be given.

Researchers should note that a bioprospecting project will be regarded as having entered the commercialisation phase once a complete patent application has been filed, irrespective of the actual commercial prospects of the project at that stage. Thus, a bioprospecting permit will need to have been obtained by the time a complete patent application (such as a PCT application) is filed.

From a bioprospecting perspective, other relevant amendments of the Act are:

  1. definitions of "commercialisation" and "commercialisation phase of a bioprospecting project" have been inserted. These definitions are the same as those in the Regulations and they therefore do not change the requirements for obtaining bioprospecting permits;

  2. the interests of specific individuals who possess traditional knowledge have now also been protected. Anyone who carries on the commercialisation phase of a bioprospecting project based on the traditional knowledge of a specific individual must now enter into a benefit sharing agreement with the individual. Prior to this amendment, the Act only applied to traditional knowledge which belonged to indigenous communities; and

  3. the penalties for contravening the Act have been increased to a fine of up to 5 million Rand for a first offence and up to 10 million Rand for a subsequent offence, and/or imprisonment for up to 10 years.