Environmental Ethics And Sustainable Business In The Malaysian Perspective

The Bakun Hydro Electrical Project (HEP) in Sarawak

On 8th September, 1993, the Government of Malaysia through the Federal cabinet approved the proposed development of Bakun Hydro Electrical Project (HEP) in Sarawak. This giant project has attracted the attention of whole nation and was immersed in controversy. Some argued that it will bring benefits to the country with the supply of long term power and energy to the nation, including but not limited to Brunei Darulssalam and Indonesia (Kalimantan) and generate more income thereafter. However, some had a different persepective that it would destroy the environment and endanger the livelihood of the people, especially the indigenous.

Initially, the Bakun dam was estimated to have a power generating capacity of 2400 MW and total storage volume of approximately 43,800 mega cu. meter. However, there were several major environmental issues identified from HEP, namely the scarification of biodiversity and natural habitats, uncontrolled dislocation of inhabitants, weakening of water quality, disturbance of river base flow and downstream flood plain water lever alteration, saline intrusion, siltation and sedimentation, floatable vegetative debris all resulting in a negative impact to socio-economic, safety and health of the people. It was predicted that if once this project is completed, the dam will drown 1,600 square kilometers of rainforest in Sarawak and dislocate 235 indigenous communities with approximately 30,000-50,000 people who are currently staying in that region.

Generally, there are three types of major issues that involve the environment, namely the physical environment, the biological environment and the existing human environment.

Deforestation issue in Sarawak

Malaysia used to be one of the largest timber exporting countries in the world. According to the statistics by Malaysian National Forestry Department, approximately 800,000 hectares protected as parks; including about one million hectares as reserves; wildlife reserves comprise 600,000 hectares; 100,000 as “protection forests” plus a few others, altogether amounting to about 1,700,000 hectares. Sarawak is the largest exporter of natural gas and petroleum in Malaysia while timber and timber products have become the third largest export revenue for Sarawak. Malaysia is also known as the largest producer and exporter of tropical plywood. Sarawak’s timber industry has played a significant role in driving the country’s economy towards Vision 2020 and even the TN50. Timber industry plays a significant role in economy growth for Malaysia, especially in export activity.

Malaysia has undergone rapid economic expansion of late and with it, concurrent deforestation and over exploitation of forests in Sarawak on a larger scale than in the late 1990s. Since the 1990s, there have been increasing reports of forested areas being turned into oil palm plantations in Sarawak and as a result, only 11 per cent of Sarawak’s rainforest remain as a result of 50 years of deforestation. (Database information Retrieved from https://forestry.sarawak.gov.my/modules/web/eform.php?id=DR&menu_id=0&sub_id=377.) Indigenous peoples, who have lived with the forest for at least 40,000 years, have been recklessly pushed aside, robbed of their communal forests, and moved into resettlement camps for the dam projects. Due to uncontrolled logging activities, the fastest rate of deforestation in Asia is Sarawak in which Sarawak has lost more than 90% of its “primary” forests. Sarawak has only 0.5% of the world’s tropical forest but accounted for 25% of tropical-log exports in 2010. (Ibid.) As timber stocks have become exhausted, the loggers have moved into the palm-oil business, clearing peat-swamp forests to make way for plantations. The negative impact of deforestation including abuses against indigenous groups, including harassment and illegal evictions although it has been the indigenous people’s home for more than 40,000 years.

The main purpose of deforestation is to supply timber to satisfy the market demand. The timber industry has contributed a large portion to national income. Initially, Sarawak was almost entirely covered with forest. Due to rapid development, according to Forest Department Sarawak (Ibid.) , almost 60% of the land in Sarawak had been licensed for timber extraction and huge areas have since been logged. In fact, the Sarawak government intends to grow the timber industry by between 10% and 40% by 2020, the ex-second Resource Planning and Environment and Industrial Development Minister Datuk Amar Awang Tengah Ali Hasan said,

“There is a need to design an action plan, with the five-year Malaysian plans in mind, to improve value-added products by 10% to 40% in export income. The annual target is RM8bil to RM10bil,” (Ji, 2019).

Sustainable Approaches to Environmental and Indigenous Rights? The Malaysian Dimensions

Sustainability in business should take care of the rights of people who live within the affected society, namely indigenous peoples who have made the forest in Sarawak their home for more than 40,000 years, and who, in the case mentioned above, have been ruthlessly relocated, robbed of their communal forests, and moved into resettlement camps for the dam projects and deforestation. The negative impact of deforestation includes abuses against indigenous groups, comprising harassment and illegal evictions. Article 8(j) of the Convention on Biological Diversity reads as

“Subject to National Legislation, to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovation and practices.” (Convention on Biological Diversity art 8(j) at page 6.)

Although this Article places the indigenous under the state sovereignty, it is arguable that this Article may be defeated through the implication that existing national legislation takes precedence.

Some common law countries including Australia, Canada and New Zealand have recognised the customary laws of indigenous people in their countries to occupy and manage their own resources. In Australia, the landmark case would be Mabo v Queensland , ([1992] HCA 23; (1992) 175 CLR 1) whereby the Australian High Court recognised the existence of native title to the use and enjoyment of ancestral lands in accordance with their unique laws and customs. Justice Bernnan stated,

“Of course in time the laws and customs of any people will change and the rights and interest of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed….” (Ibid at page [1992] HCA 32.)

Let’s look at Malaysia’s position with regard to this. In the case of Nor Anak Nyawai & Ors v Borneo Pupl Plantation Sdn. Bhd. & Ors ([2001] 6 MLJ 241.) which involved the logging of Iban forest land in Bintulu, Sarawak, the plaintiffs were residents of two longhouses located in Sekabai, Bintulu, Sarawak. They claimed that the defendant, a timber company had trespassed and damaged their ancestral land. Unfortunately, the plaintiffs did not have possession of the Issue Document of Title of the land. The plaintiffs claimed that under Iban custom, each longhouse community has a territory over which it exercised control, called the pemakai menoa . The pemakai menoa includes not only the land surrounding the longhouse but also the land devoted to the gardens and farms and the rivers and jungle within a half day’s walk used for hunting, fishing and gathering forest produce. In this case, the High Court recognised the indigenous community’s control over its communal forest and enjoined further logging by the defendant timber company. The Court of Appeal in the case of Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors ( [2006] 1 MLJ 256.) has in fact reaffirmed the customary rights of the indigenous people over the land but the key issue for the Court of Appeal to decide was whether these defendants had sufficiently “occupied” the land in dispute. If they have occupied the land all the while, they can claim the rights over the land. Otherwise, their claim would fail.

The second case that we can refer to is Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors . ([2002] 2 MLJ 591.) This case involved construction of the Kuala Lumpur International Airport in Sepang, Selangor in which the land in dispute was running through a gazetted aboriginal reserve that was taken to form part of the highway leading to the airport. The plaintiffs are the community of Temuan who had been living on the site for a long time and claimed that the disputed land was part of their ancestral lands. However, the defendants refused to recognise the plaintiffs’ proprietary rights on the land and refused to make any compensation to the plaintiffs as a result of loss of land. The plaintiffs were given compensation of loss of cost living, i.e crops and fruit trees. In this case, the High Court found that only a small portion of Temuan traditional land was in dispute. However, the court also argued that aboriginal people’s right have been long recognised as including interest in the land and not merely usufructuary rights. What was interesting in the decision in this case was that the court also recognised that the state and federal governments owned a fiduciary duty towards the plaintiffs by virtue of Article 8(5) (c) of the Malaysian Federal Constitution and Aboriginal People Act 1954. The court found that the government had breached their duty by depriving the plaintiffs of their land and unlawfully evicting them.

This decision was appealed in the Court of Appeal, ([2005] 6 MLJ 289.) The Court of Appeal under Justice Gopal Sri Ram dismissed the defendants’ appeal. The court stated,

“Here you have a case where the first defendant had knowledge or means of knowledge that some of the plaintiffs had settled on the ungazetted area. It was aware that so long as that area remained ungazetted, the plaintiffs' rights in the land were in serious jeopardy. It was aware of the `protect and promote' policy that it and the fourth defendant had committed themselves to. The welfare of the plaintiffs, on the particular facts of this case, was therefore not only not protected, but ignored and/or acted against by the first defendant and/or the fourth defendant. These defendants put it out of their contemplation that they were ones there to protect these vulnerable First Peoples of this country. Whom else could these plaintiffs turn to? In that state of affairs, by leaving the plaintiffs exposed to serious losses in terms of their rights in the land, the first and/or fourth defendant committed a breach of fiduciary duty.” (Ibid at page 391.)

The Court's decision in Sagong bin Tasi provides strong support for the doctrine of native title and promoting the welfare aboriginal peoples suggests that the Aboriginal Peoples Act 1954 might become in the future a more significant tool for protecting native lands in the Peninsula.