Env. Law National CS - Bakun Dam Environmental Law Case Study PDF

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Bakun Dam Environmental Law Case Study...

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SEMESTER 2 2019/2020

FACULTY OF SCIENCE AND NATURAL RESOURCES ENVIRONMENTAL SCIENCE (HS11) SS11603 ENVIRONMENTAL LAW

NO.

NAME

MATRIC NO.

NO. HP

1.

ALFRED CHEAM JIA JING

BS19110364

012-5681297

2.

AVVINASH A/L

BS19160570

014-3078508

BS19110328

012-4808161

THIYAGARAJAN 3.

RACHEL TAN CHIA YI

LECTURER’S NAME: ASSOCIATE PROFESSOR DR. PIAKONG BIN MOHD TUAH

Table of Contents

No.

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Content

Page number

1

Introduction

2

Case Development

4-5

3

Theoretical Framework

6-7

4

Results

7-10

5

Case History

11-14

6

References

15

3

2

1.0 Introduction Generations ago, the society of men were concerned mostly with the development of their own kind with no concern of the environment. Beginning with the Industrial Revolution, the pollution done to the environment has brought about many negative effects. Luckily, our society has begun to realise the importance of the environment and thus a new form of legislation was created in order to protect our environment which is generally known as environmental law. Environmental law is a collective term encompassing aspects of the law that provide protection to the environment (Phillipe Sands, 2003). Being one of the most environmentally rich countries in the world as well as one of the twelve mega-diversity countries, Malaysia is blessed with numerous environmental resources that are used to develop the nation in order to create higher living standards for the people of Malaysia. Unfortunately, we are also faced with problems like air pollution, water pollution, exploitation of natural resources, climate change and etc. In order to protect Malaysia’s environment, the Government of Malaysia passed on several important environmental laws and policies such as the Environmental Quality Act 1974, the Protection of Wildlife Act 1972, the National Forestry Act 1984, the Fisheries Act 1985 and the National Parks Act 1980. In addition to that, the Civil Law Act 1972, the Principles of the English Laws, the Federal Law, Shariah Laws, the Malay Customary Laws with some international environmental obligations have also been implemented in order to attain sustainable environment and development in the country (Dr. Noor Mohammad, 2011). The Environmental Quality Act 1974 was the first law to control a broad spectrum of environmental problems (Azmi Sharom, 2008). It is known that this Act and the Ministry of Natural Resources and the Environment, in the eyes of many Malaysians, are synonymous with environmental protection. With these legislations protecting the environment, there is no doubt that there have been several court cases concerning the environment. One such court case is the case of Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors and

other appeals [1997] 3 MLJ 23 which concerns the construction of the Bakun Dam. In this assignment, we will study the development of the Ketua Pengarah Jabatan Alam Sekitar

& Anor v Kajing Tubek & Ors and other appeals [1997] 3 MLJ 23 and the impacts of this case.

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2.0 Case Development The Bakun dam project refers to an embankment dam located in Sarawak, Malaysia on the Balui River, a tributary or source of the Rajang River and some sixty kilometres west of Belaga. The Bakun dam was to be the second tallest concrete-faced rockfill dam in the world. It is planned to generate 2,400 megawatts (MW) of electricity once completed. The purpose for the dam was to meet growing demand for electricity. The project was proposed in the 1970s but shelved in the 1990s. In 1994, the project was awarded to a Sarawak timber tycoon’s company, Ekran Berhad even though the company had never built a dam before. The construction of the estimated RM 15 billion dam is the most privatized project in Malaysia to date. Through the construction of the Bakun Dam, an estimated 10,000 indigenous people from various ethnic groups would have to be uprooted from their native land. The Bakun dam flooding commenced on 13th October 2010 with a faulty start and put 700 km² of land under water, equivalent to the size of Singapore. The rainforest of this part of Southeast Asia has some of the highest rates of plant and animal endemism and this dam has done irreparable ecological damage to that region.

Residents of long-houses in Sarawak challenged the

proposed construction of the Bakun Dam in an area covering approximately 70,000 hectares of forest. The natives’ case was based on their dependence on the forest, from which they received from time immemorial, shelter, livelihood, food and medicine. The development of the Kajing Tubek vs Ekran Bhd & Ors 1996 case first started in June of 1995, when 3 natives sued Ekran Berhad, Director General of Environmental Quality and Government of Malaysia, claiming breach of the Environmental Quality Act (EQA) 1974 by stating that the Environmental Impact Assessments (EIAs) were not made available to public and they were thus deprived of opportunity to comment on the proposal. Also, under the EQA 1974 Section 34A and Environmental Quality (Prescribed Activities) (EIA) Order 1987, the Bakun Dam project, being a large dam project required EIA. However, on 5th July 1995, the Sarawak Order was enacted and the prescribed activities under EQA shall not apply to Sarawak and is to be retrospective as from 1 September 1994. The defendants of the case argued st

inter alia, meaning that the 3 plaintiffs had no locus standi as they had not suffered any specific or direct damage which was different from other members of the public. The High Court in Kajing Tubek v. Ekran Bhd [1996] MLJ 388 granted a declaration to the effect that until the developer had complied with the requirements imposed by Section 34A of the

Environmental Quality Act of 1974, the project could not commence.

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This lead to the submission of an appeal from the The development of the Kajing

Tubek vs Ekran Bhd & Ors 1996 case first started in June of 1995, when 3 natives sued Ekran Berhad, Director General of Environmental Quality and Government of Malaysia, claiming breach of the Environmental Quality Act (EQA) 1974 by stating that the EIAs were not made available to public and they were thus deprived of opportunity to comment on the proposal. Also, under the EQA 1974 Section 34A and Environmental Quality (Prescribed Activites) (EIA) Order 1987, the Bakun Dam project, being a large dam project required EIA. However, in 5

th

July 1995, the Sarawak Order was enacted and the prescribed activities under EQA shall not apply to Sarawak and is to be retrospective as from 1 September 1994. st

The defendants of the case argued inter alia, meaning that the 3 plaintiffs had no locus standi as they had not suffered any specific or direct damage which was different from other members of the public. The High Court in Kajing Tubek v. Ekran Bhd [1996] MLJ 388 granted a declaration to the effect that until the developer had complied with the requirements imposed by Section 34A of the Environmental Quality Act of 1974, the project could not commence. Also, under the EQA 1974 Section 34A and Environmental Quality (Prescribed Activites) (EIA) Order 1987, the Bakun Dam project, being a large dam project required EIA. However, on 5 July 1995, the Sarawak Order was enacted and the prescribed activities under EQA shall not apply to Sarawak and is to be retrospective as from 1 September 1994. The st

defendants of the case argued inter alia, meaning that the 3 plaintiffs had no locus standi as they had not suffered any specific or direct damage which was different from other members of the public. The High Court in Kajing Tubek v. Ekran Bhd [1996] MLJ 388 granted a declaration to the effect that until the developer had complied with the requirements imposed by Section 34A of the Environmental Quality Act of 1974, the project could not commence. This lead to an appeal submitted by the Director General of Environmental Quality, the Natural Resources and Environment Board of Sarawak and Ekran Bhd in order to challenge the decision of the High Court.

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3.0 Theoretical Framework In this case study, we are using environmental justice as an analytical tool to further question the motifs and aftermath of the construction of the Bakun Dam. Environmental justice is defined as the non-discriminatory protection from exposure to environmental hazards and toxins (London, 2019). It encompasses the distribution of environmental goods and harms, considering who is responsible for creating them and who experiences their consequences. These environmental issues range from local residential areas being polluted to international trade in natural resources (Stephens, 2008). The dangerous pollutants and hazards compromise the health of a certain community. Environmental justice is utilised to determine inequities that result in environmental injustices. Here, we know that environmental justice is linked with development, human rights and democratic accountability. The United States Environmental Protection Agency explains that environmental justice has the fair treatment and meaningful involvement of all people regardless of race, skin colour, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations or policies. Ultimately, the people who suffer the effects of environmental injustice are usually from lower-income communities or minority communities. In the Bakun Dam case, the stakeholders were namely: the Indigenous community members, Malaysian institutional actors and Chinese institutional actors. The Indigenous community members were from the 15 longhouse communities that are resettled at Sungai Asap. They are from ethnic groups of Kayan, Kenyah, Lahanan, Ukit and Penan people. Malaysian institutional actors are dam operators, utility firms like Sarawak Hidro, Sime Darby, the Prime Minister's office, NGO’s such as Borneo Resource Institute. Finally, the Chinese institutional actors consist of Sinohydro, China Three Georges Corporation, financers like Exlm Bank, Chinese ministries (MOFCOM, MFA, MEP) and other regulators. Pulido (1996), Faber (2005) and Schlosberg (2007) have stressed on the importance of process and production in environmental justice. In this case study, 3 aspects are important in understanding the conflict. These are distributive justice, procedural justice and procedural justice. Distributive justice which addresses the distribution of the large amount of fairness in the distribution of goods is crucial in encompassing how indigenous communities have been exposed to environmental hazards and several issues which affect their welfare. Besides that, procedural justice focuses on how decision-making process in environmental policy making and implementation is a perception that if it were to be fair, participating parties would have to accept a disliked outcome (Deutsch, 2000). Substantive justice stresses on basic needs for

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example, sufficient food, housing, employment opportunities, basic social services and the equality of rights. Next, procedural issues covers for the accountable governance and the management of the policy, planning and standard-setting process and their implementation including directors in charge for fulfilling promises made, social monitoring of policies, standard-setting process and its implementation; access to participation and decision-making in different stages of the process and over time, proactive stakeholder communication and consultation throughout the process (Boström 2012; Urban et al. 2015; Nordensvard et al. 2015). Substantive justice and procedural justice are important aspects to understand the relationship between the Kayan and Kenyah people and the Bakun Dam case. Hence, it is important to expand our understanding of environmental justice to understand underlying and severe consequences of the Bakun Dam. Indigenous and native communities demand for environmental justice are less concerned about distributive equity. Instead, their main concern was about their tribe’s traditions and practices, and to protect their native ancestral land (Scholsberg, 2010). Hence, we have to focus the analysis on the concerns of the Indigenous communities and their environment.

4.0 Results The Indigenous people which numbered around 10000 people who were resettled from their ancestral lands to make way for the Bakun Hydroelectric Dam were relocated to an area closer to urban settlements and were given compensation (reduced from the original compensation) for their lands according to the number of trees present on the land and not taking into account the lands flooded by the hydroelectric dam project. The 3-acre land given to the resettled indigenous people is insufficient for subsistence farming and is forcing the previously self-sufficient people into the labour market to earn a living as their environment is not conducive for foraging and subsistence farming. Many Indigenous people did not know the full details of the arrangements of the resettlement as they relied and trusted their village elders to conduct all the negotiations. The villagers felt betrayed by their trusted leaders who did not lead them to ‘ the promised land’. The resettled villagers were forced to adapt to a new and foreign environment, particularly in terms of financial considerations. Besides that, on a deeper spiritual level, they lost connection to their ancestral lands and their burial grounds and diminishing cultural practices.

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The resettlement has also brought the indigenous people much closer to urban centres and improved access to schools, hospitals and improved job prospects for the younger generation. 4.1 Cultural impacts The customary lands that belonged to the indigenous people for life were sustainable for them to live off due to the land’s high fertility and suitability for crops. Crops such as rice and vegetables helped them to be self-sufficient and allow them to be close to their ancestral lands and burial sites and to continue their unique cultural practices that have been practiced in the region since time immemorial. Whereas the lands the state government resettled the indigenous people to, has lower fertility and is more suited for palm oil trees than for rice and vegetables. Moreover, the lands ‘given’ were only 3 acres for each family and the land does not belong to them for life (Freehold) and they are only given Temporary Occupational License or TOL that expires after 60 years. On top of that, they are not given land titles and therefore cannot sell the land they have been ‘given’.

4.2 Economic impacts The 3-acre land given to each resettled family is insufficient to sustain a family as the land is not suitable for subsistence farming and the new surrounding area is not suitable for fishing and does not have suitable natural resources. The indigenous people were a big culture shock to them. As previously, they never had to cash often when living within their customary lands as they were self-sufficient due to having fertile lands for farming, rich fishing grounds and abundant natural resources such as rattan and many other plants and trees they could use. Whereas in the newly resettled lands, they had to pay money just to be able to reach a market to buy vegetables, fish and meat and many other expenses. Currency to support transport, access to natural resources that are no longer available at the new location and the need to sell and buy products from a market system that is not feasible/practical for them . Therefore, standard of living is higher in the resettlement area. For villagers who do not have access to remunerative jobs, such as the elderly and women, their livelihoods have decreased. The change in environment has changed the lifestyle of the Indigenous groups and they now need to utilise money and therefore will have to labour market either formal or informal to earn a living for their families and their communities. This changes their traditional, selfsufficient lifestyle that supported them to later become part of a labour force. But there is a

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silver lining to the forced resettlement, job opportunities for most of the villagers, especially the young or middle-aged men, have increased after moving in the resettlement site due to increased access to roads, schools and larger settlements and more employment opportunities otherwise not available in the customary lands.

4.3 Legal Impacts The ruling by the judge that the EQA 1974 does not in fact apply to the Bakun Dam Case highlights the fact that the EQA 1974 only applies to the whole of the Malaysian Federation only in principle as there are many loopholes in the Federal Constitution in regards to the ‘Environment’ in the States List which specifies the jurisdiction of the States authority and prevents the Federal Government from interfering in the states authority in regards to Land and Water which is listed in the State List in the Federal Constitution. This gives the states carte blanche to manage matters pertaining to Land and Water. This case also highlights the limitations and inherent plot-holes in the EQA 1974 which limits its effectiveness during the enforcement of the EQA in different states as each state has their own laws on matters on Land and Water which does not have to comply with the EQA 1974 which makes the EQA 1974 merely a formality and has no real effect in the real world. This past ruling may also affect future rulings as this case may set a precedent for future cases and will be taken into account by judges when making a ruling on a related case.

4.4 Environmental Impacts 4.4.1 Direct Environmental Impacts The direct environmental impact arises from the decomposition, and denitrification of biomass, animal and other biological resources when the water in the dam is impounded. It is estimated that in the first year of flooding, 10 million tons of carbon dioxide, methane and nitrous oxide will be released into the atmosphere. The accumulation of these gases will create a heattrapping layer, and have a greenhouse effect. The temperature of the Bakun region will feel warmer. Once the entire 710 km of Bakun is exposed directly to solar irradiance, the microclimatic change will be worsened. It is estimated that of the 1.42 million to 2.84 million

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kilowatt hours per day (kWh/day) of the energy wave received in the Bakun reservoir area, 653,000 to 1.3 million kWh/day of energy wave (46%) and 326,000 to 653,000 kWh/day (23 percent) will be absorbed by the terrestrial surface and the atmosphere respectively while about 440,000 to 880,000 kWh/day of the energy wave (31%) will be reflected back to space (Choy, 2004). The warming effect will exert a long-term adverse ecological impact of the forest ecosystem. The construction of Bakun Dam will flood approximately 700 km2 of land. The forestry in this area will be cleared by burning the rainforest on fire, therefore contributing to polluting haze already blanketing the region and raising the risk of forest fires in adjacent areas. This action violates 29A of Malaysia’s Environmental Quality Act, which strictly forbids conduction of open burning activities. Besides that, Sarawak has a rich biodiversity of wildlife, and is home to hundreds of indigenous plants and animal species. Animals such as the endangered Bornean orangutan, the rhinoceros hornbill, and the Bornean sun bear, the Bornean pygmy elephant and the Bornean clouded leopard. These forests are a vital re...