Governance and Micropolitics of Traditional ... - IPRsonline.org

herbs’. Controlled herbs are thus given special treatment designated by the Minister, with
advice from the Committee with regards conservation, transport, use for medicinal and study
purposes, export and other matters. For controlled herbs there is thus certification required by
individuals outside government bodies to undertake the aforementioned activities on such
herbs. Ministerial Regulation has not been developed to fully implement this chapter.
For the benefits of conserving herbs and the areas from which the herbs naturally originate in
the ecological system, the Minister with advice from the Committee can designate a ‘Plan for
the Conservation of Herbs’ which must then be approved by Cabinet. The Plan designs
powers to restrict access to conservation areas to conserve natural resources with minimal
human disturbance. The plan also requires surveying and researching of the herbs to assist
with conservation.
The Act is quite strict in prohibiting ownership of land, or plantation, or construction, or
cutting, or destruction, or burning, or destruction of trees, plants, or biodiversity or the
ecology system, or digging of minerals, stones and soil in the conservation area. It also
restricts changes to waterways that might affect herbs in very broad terms. If the owner or
possessor of the land registers the herbs on their property they are eligible for assistance or
support under this Act, however this assistance is not yet specified.
A potential conflict arises here where local communities following traditional lifestyles have
conserved or utilised such herbs. In such cases the medicinal value of the herbs may not have
been known were it not for those communities, and there could have been unwanted
disclosure which brought about such discovery. Thus it is important to question whether such
exclusion is necessary or justified, and whether there has been prior informed consent about
such knowledge of herbs in the first place. Although there is a fairly balanced membership on
the Committee, the final word rests with the Minister and Cabinet and it is conceivable that
custodian communities could be excluded from herbal use and conservation. Such exclusion
however, could be construed as a breach of the Constitution of the Kingdom of Thailand,
Section 46, as discussed previously. The Committee, Minister and Cabinet will have to be
very cautious how it approaches such cases.
Chapter Four is designated to conservation; however Chapter Three deals with most of the
substantive content for the conservation of herbs.
Chapter Five describes the role of officials. Officials authorised under the Act have quite
strong powers including the confiscation of items believed to be in violation of the Act, as
well as the relocation of people from herb conservation areas. Chapter Seven describes
penalties that are similar in nature to that of the PVP Act.
Chapter Six establishes the Fund on Traditional Thai Medicinal Intelligence. The fund
receives its income primarily from state subsidies, and money from the private sector relating
to the operation of the Act. The Fund is controlled by the Office of the Permanent Secretary,
from the Ministry of Public Health. No benefit sharing arrangement has been established for
communities that reside in areas to be designated as herb conservation areas, and there are
few limitations on the expenditure of the Fund.
Commentators such as Professor Jaroen Compeerapap have warned that careful consideration
needs to be made about implementation of certain aspects of the Act, namely that the
mechanism for benefit sharing through the Fund is not clear or necessarily transparent.
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