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Thailand Releases Draft Biodiversity Act

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Thailand is one of the most biodiversity-rich countries in the world due to its large variety of ecosystems, landscapes, and habitats. This array of natural resources has played a large role in supporting local livelihoods for millennia, and since industrialization has contributed significantly to national economic growth. Committed to preserving its unique natural heritage, Thailand became a party to the Convention on Biological Diversity (“CBD”) in 2004. In furtherance of this commitment, the National Reform Plan in Natural Resources and Environment (“NRP”) was published in the Government Gazette on 4 April 2018 to align with Thailand’s 20-year National Strategy (2018–2037), providing governmental guidelines to move forward with Thailand’s development while balancing concerns about the sustainability of its natural resources. The NRP prescribes that action must be taken towards a comprehensive domestic biodiversity law by 2020.

Biological resources, and access and benefit sharing (“ABS”) from their utilization, are regulated under the Regulation of the Office of the Prime Minister on the Conservation and Utilization of Biodiversity, the Regulation of the Committee on Conservation and Sustainable Use of Biodiversity on the Criteria and Methods for ABS from Biological Resources, and relevant sui generis laws (e.g., Plant Varieties Protection Act, National Reserved Forest Act, Pathogens and Animal Toxins Act). These regulations are insufficient to satisfy the NRP guidelines. As such, on 22 January 2019, the Biological Diversity Division of the Office of Natural Resources and Environmental Policy and Planning (“ONEP”), Ministry of Natural Resources and Environment held a kick-off meeting to discuss a draft Biodiversity Act (“Draft BD Act”). The ONEP held a workshop regarding ABS the following week, and workshops on other relevant topics will be held throughout the year.

Although the Draft BD Act has yet to be published, at the kick-off meeting and subsequent workshop the main objectives of the Draft BD Act were communicated as follows:

1) to set standardized regulations for state agencies regarding biodiversity utilization;
2) to set a common standard to promote biodiversity both for sui generis laws and general laws invoked to protect living things not covered by the such laws; and
3) to stipulate liabilities and penalties for those who adversely impact biodiversity.

The Draft BD Act will apply to animals, plants, and microorganisms.

Key Highlights of the Draft BD Act

1) ABS:  While Thailand is not a party to the Nagoya Protocol on ABS (a supplementary agreement to the CBD), the Draft BD Act would adopt its legal framework to ensure effective implementation and the fair and equitable sharing of genetic resources and associated benefits. This includes: (1) Prior Informed Consent (“PIC”) — permission given by the competent national authority of a provider country to a user prior to accessing genetic resources; and (2) Mutually-Agreed Terms (“MAT”) — an agreement reached between users and the providers/possessors of genetic resources on the conditions of access to and use of the resources, and the benefits to be shared between parties. ABS is also proposed in the recent draft Patent Act amendment, which was approved by the Cabinet on 29 January 2019 meaning that patent applicants must declare the source of origin of genetic resources or traditional knowledge and submit PIC and MAT documents when filing patent applications. This draft Patent Act has been sent to the Council of State for further consideration.
2) Biodiversity Preservation: The habitats of important ecosystems will be defined and regulated. Rare species, endemic species, and endangered species will also be identified and classified accordingly for preservation. Habitats on privately-owned land, in which preserved species live, would be recorded with consent of the landowner.
3) Controlling Biodiversity Effects: Alien species will be registered for purposes of protection, control, and elimination. These alien species include Living Modified Organisms (“LMOs”), which are genetically modified organisms (“GMOs”) that are alive and capable of transferring genetic materials to subsequent generations. In 2015, there was a previous attempt to regulate LMOs in Thailand, but the relevant draft law did not pass the National Legislative Assembly.

We will keep you informed of further developments on this matter. In the meantime, please contact the Bangkok Patent team if you have any questions.

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Say Sujintaya is a partner in Baker McKenzie's Bangkok office and the regional chair of the Firm's Intellectual Property Group in Asia Pacific. She also heads the Intellectual Property and Media and Entertainment teams in Bangkok and was responsible for establishing the Intellectual Property practice of the Firm's Yangon office.

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Radeemada Mungkarndee is an associate in Baker McKenzie's Bangkok office.

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Gumpanat Mahipant is a patent consultant based in Baker McKenzie's Bangkok office.

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