By Zhang ML
Bernama reported recently that the “Special Purpose Vehicle” (SPV) company, set up for the purpose of undertaking the transmission line project to supply electricity from Sarawak to west Malaysia, has been purchased by Tenaga Nasional Berhad and Sarawak Energy Berhad, for a sum of RM16 million. They are each to have a 50% stake in the SPV.
It was also reported that 77 percent of the undersea high-voltage transmission line is planned to run across the sea bed of the South China Sea across Indonesian waters or territory.
The agreed price was said to have been arrived at after considering advances that had been made by Sime Darby to the SPV for the purpose of project studies, including the Environmental Impact Assessment (EIA) for the undersea cable.
I wonder if the Indonesians, or perhaps the fish and marine life in the waters between Bentong and Tanjung Dato, will have say over the intended construction of the HVDC over their territorial waters?
And which set of EIA rules must the project proponent, namely the SPV, comply with: West Malaysia’s Environmental Quality Act or Sarawak’s Natural Resources and Environment Ordinance?
Differences between environmental laws in Peninsular Malaysia and Sarawak
It has already been well researched and documented elsewhere, that there are differences between the EIA requirements stipulated by the Sarawak Ordinance under the Natural Resources and Environment Ordinance, and the Environmental Quality Act which applies to projects in west Malaysia. I do not wish to repeat these statements here.
articles link :- http://www.iaia.org/publicdocuments/EIA/CaseStudies/EIAMalaysia.pdf
The history of how there came to be the two sets of laws and how they came about are also well documented and referred to, in the Bakun case of Kajing Tubek & Others v Ekran Berhad and Others reported at 2 MLJ 388 (High Court decision) and 3MLJ23 (Court of Appeal decision).
Suffice it to say here that the element of public participation in the EIA process in Sarawak is blatantly missing. Public participation is not mandatory. Public participation in the process of EIA means that concerned persons or groups, including people who will be affected by the project, are consulted. The public is also entitled to view the EIA report, as well as to address the review board of the Authority.
A look at the guidelines produced and published by the Natural Resources and Environmental Board entitled “Handbook of the Policy and Basic Procedure of Environmental Impact Assessment in Sarawak (1995) confirms that it is not mandatory for the project proponent to get feedback from, or consult with, the public. Page 19 states “Public participation, on the initiative of the project proponent and where it affects public interest, ought to be included in the Detailed EIA process …”
It goes on to say that where that happens, copies of the detailed EIA report for public scrutiny are held on open file in the Office of the NREB. The public can then make comments in writing and send them to the Board within 30 days of the public notification by the Board.
The Review Panel in formulating its recommendations may take into account written comments received from the public. If that is the extent of the avenue of public participation anticipated by these Guidelines, it falls sorely short of the mark of international standards of ‘public participation’ in the EIA process.
Changes in the law-too little too late?
Now in a statement to the press, Environmental Advisor to the Sarawak Government Dr. James Dawos Mamit says that “With the adoption of international standards by the state government, the EIA report for Murum Dam is currently under review. The completed EIA report is considered insufficient to address the relevant social and environmental impacts and risks of the proposed project. Thus a review by another group of consultants to identify and address gaps in the previous EIA is undertaken in accordance with the requirements of the Equator Principles.
“This group of consultants” has elsewhere been referred to as “consisting of Australian anthropologists and sociologists”. I wonder whether this review “by another group of consultants” is going to increase the costs of the project by some further millions.
And I wonder if James Dawos Mamit is merely paying lip service to the Equator Principles and international standards, as you will note in a report dated 12th June 2009 in the Borneo Post: the Chief Minister of Sarawak is quoted to have said that Murum Dam construction is now already underway! .
Dawos tells us that the Natural Resources and Environment (Prescribed Activities) Order is currently being amended to accommodate international standards and the requirements of the Equator Principles. With the adoption of international standards, the EIA is now known as the Social and Environmental Impact Assessment (SEIA).” Dawos goes on to say that the state government is adopting the Equator Principles for all projects’ EIAs, particularly in the SCORE development area.
If what he claims is true, that is changes are being made to our NREO, then those amendments are commendable. However, amendments to ordinances or acts of parliament generally do not apply retrospectively!
Although I cannot help but think that he is echoing the CM who had said that the development of the hydroelectric dam projects in Sarawak will be done “according to international standards” (according to the Borneo Post, March 24, 2009).. The CM also said this would include building dams on equitable principles (whatever that means! my engineer friends freaked out hearing this rhetoric) to ensure these projects were environmentally sustainable.”
What are the Equator Principles (EP)?
The EPs are a benchmark or a set of principles used by the finance industry for determining, assessing and managing social and environmental risks or issues in project financing. This benchmark has been widely adopted by banks and financial institutions.
As of April 2008, there were 60 financial institutions worldwide that have adopted the Equator Principles. This means any project proponent or developer would have to show compliance with those principles if they were to request a loan from those financial institution.
In other words, international financing standards and practices are such that Sarawak, or rather the projects of the magnitude envisaged by SCORE, virtually have no choice but to make Sarawak’s laws “international–friendly”. This will enable local and foreign investors to get the bankers to lend them the money to develop those projects. I wish to highlight here two important principles out of the ten mentioned by Dawos, and referred to in his press statement:
i) Consultation and disclosure (principle 5)
ii) Setting up of a “Grievance Mechanism” (principle 6)
Principle (i) points to the element of public participation – currently glaringly absent from the EIA process in the existing NREO. This principle means that, for projects that have significant adverse impacts on affected communities like hydroelectric dams, the Borrower (whether government or private investor) must consult with communities affected by the project.
The Borrower must do this in a structured and “culturally appropriate” manner. This process would ensure free, prior and informed consent of affected communities. It applies to the entire project process, and not the early stages of the project alone.
Furthermore, consultation with indigenous peoples must conform to specific and detailed requirements stipulated in the performance standards. Consultation and disclosure means that the assessment documentation or the report must be made available to the public by the Borrower, for a reasonable minimum period in the local language, and in a culturally appropriate manner.
Then the Borrower must document the process and results of consultation. This includes any actions agreed together with the affected communities, resulting from the consultation.
The Grievance Mechanism means that the Borrower will establish a feedback mechanism as part of the management system of the project. This mechanism allows the Borrower to receive and resolve concerns and complaints about the social and environmental impacts. These grievances may be raised by individuals, concerned groups or entire project-affected communities.
The Borrower must make the Grievance Mechanism readily accessible and must address the concerns promptly and transparently. This ensures continual consultation, disclosure and community engagement, throughout construction and operation of the project.
Dr Dawos also stated categorically that “the Murum Dam project will establish the grievance mechanism as part of the management system”.
Over 1,000 Penan people in affected Murum communities, the entire Malaysian civil society, as well as you and I, will need to mark his words.
We should also note that, in a Sarawak State Assembly sitting last November (Borneo Post March 24, 2009). Padungan Assemblyman Dominique Ng said that the 12 proposed dams would cause wanton environmental and biodiversity destruction, as well as violent dispossession and displacement of affected groups.
Assistant State Minister for Public Utilities, Sylvester Entrie ak Muran, refuted Ng’s assertion, saying that the hydro projects would have to undergo rigorous EIA studies to comply with the requirements established under the NREO.
He also told the Assembly that in the early stages of the project, the affected ethnic groups would be briefed, consulted and interviewed and their perceptions recorded, as part of the EIA study. He claimed this would form an important element for the participation of the ethnic groups in the project.
This kind of statement begs the question: what, if any, was the type of consultation that the state or project proponent had with the indigenous communities that are going to be affected by the dam, and other interested parties? Will we, the public, ever get a chance to see the EIA report (keeping in mind that the law, as it stands now, makes no requirement for the state to put up the report for public viewing)?
I must also point out that Article 6 of the Natural Resources and Environment (Prescribed Activities) Order, 1994, stipulates that “No prescribed activities (dam-building being one of those activities falling under the First Schedule of the Order) shall be carried out or commenced until a) a report required to be submitted under Article 3 (an EIA report) has been considered by the Board…”
Article 7 goes on to say that if there is a breach of Article 6, the Controller may direct any of the prescribed activities to be stopped.
Can you imagine this happening?
Too little too late
The statements by Dawos, the State Advisor on the Environment, on proposed amendments to the Natural Resources and Environment Ordinance to keep up with international standards are mere hot air.
Even if these amendments see the light of day in the State Assembly, any contribution would be too little, too late.
Would those amendments be made retrospective? If so, project implementation would be stalled and cost overruns would become likely. They would also cost more in terms of time, reviewing whatever EIA that is already in place.
Will there be even an iota of political will, strong enough to make the amendments retrospective?
As it is, memoranda of understanding and talks are already in place with our neighbours Brunei and Indonesia, to supply them electricity from those dams.
For the communities and peoples affected by the dam construction, whether in catchment areas, or outside of it (for example, downriver), what recourse do they have if they have not been consulted?
There are also outstanding issues regarding of the forced re-settlement of affected communities. I do not intend to talk about these in this article, except to point out that the calls by various organised sectors of the Orang Ulu communities may have come a little too late.
Several SUHAKAM Commissioners conducted site visits in the Murum Dam area last week. Their visit concluded with a Forum on Implementing Hydroelectric and Reservoir Dam Projects, in Bintulu, on July 23. One of the objectives of the Forum, stated on Suhakam’s website, was to come up with recommendations to be proposed to the government in order to address the identified concerns. and www.bernama.com/bernama/v5/newsindex.php?id=427443)
On the Forum’s agenda were testimonies from indigenous peoples’ representatives from villages affected by Murum, Bakun, Bengoh and Batang Ai.
I call upon the Suhakam Commissioners to now procure a commitment from the state government, that the state’s NREO will indeed be substantively amended. The NREO must include the elements of consultation, disclosure, public participation and grievance mechanisms, as stated in James Dawos Mamit’s statement to the press.
I wish that I could say to the highest decision making body of this land: “DO IT RIGHT THE FIRST TIME!” But I don’t have such a luxury. The history of deeply troubled re-settlement exercises in Sarawak testifies to doing it wrong many times over.
We seem to keep telling ourselves: “perhaps, yes perhaps, they will get it right from now on?”