4. Existing Frameworks to Access Biological Resources in New Zealand
This section discusses the existing legal frameworks governing the ownership of biological resources and the frameworks that govern access to these biological resources.
4.1 Legal frameworks
Under New Zealand law, the legal ownership of biological material is fragmented, and in some cases, ownership is not defined. Under the Wildlife Act 1953, all animals living in a wild state in New Zealand are deemed to be owned by the Crown (although there are exceptions to this). The Wildlife Act includes indigenous land mammals (bats), most birds, some reptiles, amphibians and some invertebrates. Common law vests ownership of specimens of plants, micro-organisms and fauna with the relevant landowner (except where statute, such as the Wildlife Act, provides otherwise).
Ownership of particular biological material, because of ownership of a particular block of land on which a population of an interesting species is located, does not provide legal rights over similar specimens or populations possessed by other owners. Nor does it give rights over the information derived from studying this material. Moreover, it is not possible to obtain an intellectual property right over a naturally occurring organism (though under certain conditions it is possible to obtain an intellectual property right to information derived from studying this material).
Ownership issues for New Zealand's marine fisheries resources are managed under the Fisheries Act 1996. New Zealand's fisheries regime does not assert ownership over fisheries resources while they are in their natural environment. However, once fish are commercially caught, in accordance with the law, the fish and the benefits that can be obtained from that fish belong to the catcher. The right to develop new products, including putting caught fish through a biodiscovery process, and the right to sell the fish for this purpose, are contained within this law.
4.1.1 Foreshore and Seabed Act 2004
The foreshore and seabed is an area containing a range of biological resources of potential interest to bioprospectors. Any bioprospecting framework must be designed so that it is consistent with the Foreshore and Seabed Act 2004.
Under section 28(1) of the Foreshore and Seabed Act 2004, the Minister of Conservation exercises, in relation to the public foreshore and seabed, all the functions, duties and powers of the Crown with respect to the public foreshore and seabed.
What does the Foreshore and Seabed Act 2004 do? This Act:
- guarantees general rights of public access and recreation in, on, over and across the public foreshore and seabed and general rights of navigation within the foreshore and seabed;
- provides mechanisms to enable groups who may have held rights at common law in the public foreshore and seabed to participate in the administration of a foreshore and seabed reserve or to enter into formal discussions on redress; and
- provides for the recognition and protection of on-going customary rights to undertake or engage in activities, uses or practices in areas of the public foreshore and seabed.
4.2 Central government access providers
A large proportion of New Zealand's biological resources, including some ex situ collections, are currently managed through the various access systems developed by government agencies or government-funded organisations. However, there is little co-ordination across these systems.
In principle, there is a distinction between allowing access to the place where biological specimens can be taken and allowing samples to be collected. However, approvals often cover both aspects together. So, for example, a landowner may sign a single agreement that allows a bioprospector to have physical access to their property and also to take certain biological samples.
The Department of Conservation, the Ministry of Fisheries and other organisations such as Land Information New Zealand are responsible for administering access to Crown-managed and/or owned biological material in their jurisdictions. The Department of Conservation has developed systems that explicitly allow for bioprospecting applications. Other agencies may allow for bioprospecting but, at present, do not have specific systems for dealing with this activity. Crown Research Institutes have discretion over allowing other parties to access biological material they hold in ex situ collections.
4.2.1 Department of Conservation
Access to biological material managed by the Department of Conservation is determined by its concessions and authorisations systems. These systems cover a broad range of activities and, generally, rents, fees or royalties can be required under them.
The concessions and authorisations systems provide a transparent process for all applications for commercial uses such as for telecommunications structures, filming activities, tour guiding and commercial research (such as bioprospecting). Access is subject to General Policies (issued in 2005 under the Conservation Act and the National Parks Act). One of the General Policies is a requirement that "any property rights, including intellectual property rights, should be safeguarded for the benefit of the Crown on behalf of the people of New Zealand". An appropriate safeguard could be an agreement with conditions for bioprospecting, such as those around benefit sharing and minimising or avoiding environmental impacts.
4.2.2 Ministry of Fisheries
Access to fisheries resources (fish, aquatic life and seaweed) in New Zealand fisheries waters (including the EEZ, territorial sea, internal waters and other fresh and estuarine waters) is administered by the Ministry of Fisheries with a few exceptions. The Fisheries Act 1996 does not cover juveniles of whitebait species, sports fish, ornamental fish, unwanted aquatic life, micro-organisms or fungi. The last two are likely to be of particular significance for bioprospecting. Organisms covered by the Wildlife Act and the Marine Mammals Protection Act 1978 are managed by the Department of Conservation.
The following description applies primarily to New Zealand nationals as there are limitations on access for non-New Zealanders, for example, a requirement for foreign vessels to hold a licence from the Ministry, and restrictions on owning quota or holding fishing permits. In general, this means that the simplest way to access fisheries resources is in partnership with New Zealand organisations and individuals, which may provide opportunities for significant benefit sharing.
Access rights – Quota Management System
Under the Quota Management System (QMS), quota owners collectively hold rights to all of the available commercial catch in a fish stock and to the commercial value that can be gained from owning those fish once caught, including the sale of the organisms to bioprospectors. They can pass these rights on by leasing their yearly fishing rights (Annual Catch Entitlement or ACE). Any bioprospecting framework would need to respect the rights already allocated under the QMS.
Access permits – fishing permits
Commercial access to fisheries resources is managed under fishing permits. Access to a fishing permit is open to any New Zealand individual, who must then comply with fisheries management rules and obtain quota or ACE if they are taking quota species. The fisheries access regime currently makes no distinction between bioprospecting and other commercial uses. Bioprospecting can, therefore, take place under a fishing permit. Any bioprospecting framework would need to take into consideration the access rights already allocated under fishing permits.
Special permits
The Ministry of Fisheries also operates a special permit regime. Special permits provide for fishing activities where no other suitable mechanism exists. However, the granting of a special permit should not undermine the integrity of fisheries management frameworks. Some bioprospecting is likely to already be occurring under the investigative research category of special permits, mostly as part of wider research projects.
4.2.3 Ministry of Foreign Affairs and Trade
The Continental Shelf Act 1964, which is administered through the Ministry of Foreign Affairs and Trade, covers some aspects of activity on the floor of the continental shelf. This includes the gathering of sponges and other sedentary species (organisms that, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil). However, it does not cover the collection of living organisms that are not attached in some manner to the continental shelf. In practice, access to fisheries resources within the EEZ is managed under the Fisheries Act 1996, and therefore the provisions of the Continental Shelf Act 1964 are relevant only to sedentary species in areas of the continental shelf beyond 200 nautical miles.
Under the United Nations Convention on the Law of the Sea (UNCLOS), before a foreign vessel enters New Zealand waters for the purpose of marine scientific research, it must get New Zealand's consent. This is done through the Ministry of Foreign Affairs and Trade. While this requirement provides a means of regulating access, the system is not explicitly designed to optimise benefits for New Zealand.
Foreign research vessels in New Zealand waters
New Zealand's large Exclusive Economic Zone (EEZ) makes it an attractive candidate for marine research. Foreign research vessels frequently apply for access to the EEZ, through the Ministry of Foreign Affairs and Trade.
The FSV Marion Dufresne and the Deep Water New Zealand Expedition are two recent examples of prominent research vessels in New Zealand waters. Although these vessels are primarily on oceanographic missions, many declare an interest in collecting biological samples. In normal circumstances, New Zealand is required by UNCLOS to consent to these types of projects if the research is being carried out for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all humankind. In any case, as this work is usually done in close collaboration with New Zealand scientists, granting consent can be in New Zealand's interests. Collaboration also enables biological samples to be collected and stored by local researchers, adding to ex situ collections and information about biological resources in New Zealand's territory.
4.2.4 Land Information New Zealand
Land Information New Zealand administers substantial areas of land (including riverbeds) throughout New Zealand under various Acts, including the Land Act 1948, the Crown Pastoral Land Act 1998 and the Crown Forests Assets Act 1990. At present, Land Information New Zealand has no specific system for processing bioprospecting applications over land that it administers.
4.3 Local government access providers
Local government is both a regulator and an administrator of natural and physical resources. As a regulator, local government administers the Resource Management Act 1991 (RMA). The RMA promotes the sustainable use of natural and physical resources (which are defined to include all forms of plants and animals). Local government implements the RMA through regional policy statements, and regional and district plans. The RMA covers most potential environmental effects of any bioprospecting activity through controls in regional and district plans. Under the Historic Places Act 1993 (HPA) and section 6 of the RMA, local government together with the Historic Places Trust, manages and protects areas of historical and cultural significance, for example, archaeological and wähi tapu sites.23
Local government controls the use of land (including activities such as excavation and disturbance of land for purpose of access, disturbance of habitats of plants or animals), the use of water, discharge of contaminants and the use of the coastal marine area (including disturbance of the foreshore and seabed). In sensitive areas, where significant vegetation or habitats could be affected, there may be restrictions on the removal of plants and animals, and there may also be controls on access tracks or disturbance of the area. Resource consents may be required for larger-scale activities associated with bioprospecting, and an assessment of the environmental effects (including cultural effects such as the association of Mäori with täonga and the exercise of kaitiakitanga) of the activities to be undertaken would be required as part of the consent process.
As an administrator of land, local government owns and/or manages areas, on their own behalf and on behalf of the Crown. For example, local government is responsible for large areas of reserves. Under the Reserves Act 1977, certain categories of reserves (such as local purposes reserves and historic reserves) are managed by local government, while ownership stays with the Crown.
4.4 Private access providers
In addition to any environmental controls under the RMA, where land is in private ownership, a bioprospector needs permission to access the land for the purpose of taking samples. In other words, it is up to each private access provider to permit access to the biological resources found on their land.
Back to Top