FLEGT in Malaysia
Serious outstanding issues must be resolved before a VPA can be signed. These include recognition of native customary rights and a stakeholder consultation process which is of major concern as it is failing to bring consensus or deal with long standing conflicts. The problem is most stark in the Malaysian State of Sarawak, which holds a large amount of the country’s forests, has a majority of indigenous peoples, and is home to over 150 court cases involving land claims. The Sarawak Timber Association (STA) has produced a statement and a report denouncing the VPA if it attempts to address issues such as “sustainability, land rights and social economic conditions of indigenous people, independent monitoring and EU representation in the Joint Implementation Committee”, all of which are core to FLEGT agreements.
It seems therefore unlikely Malaysia can sign a VPA that will include the State of Sarawak. This may or may not preclude an agreement to be signed between the EU and Peninsular Malaysia and Sabah. Meanwhile, it has been learnt that EU expects Malaysia to resolve the internal differences pertaining to individual state sovereignty and the independent monitoring issue.
As no new legality definition or near final Timber Legality Assurance System are publicly available, it is as yet unclear to what extent key NGO demands have been addressed. These include that disputes over land be settled prior to logging, that timber harvested in disputed areas be considered illegal, and that applicable customary laws is not limited to codified customary laws but includes unwritten customary practices that have been recognised – such as customs and usage as per the Federal Constitution. What is clear is that the VPA process has put the spotlight on the issue of rights to land, but whether it can or cannot be a factor in solving this remains to be seen, Although it presently looks unlikely that these hurdles can be cleared, if solutions can be found, Malaysia could move quickly to implement its legality assurance scheme, as it is a country well organised to do so.
A definition of legal timber was proposed in June 2007 at the second consultation without the consensus. The Ministry also presented a paper on Malaysia: Timber Trade Regulations and Licensing System.
During the third consultation in November 2007, Social NGOs (JOANGOHutan and JOAS ) submitted a paper of the ‘Key Principles for the Malaysia-EU FLEGT Voluntary Partnership Agreement’ to the EU delegation who were present at the first consultation. While at the same meeting Sahabat Alam Malaysia or Friends of the Earth, Malaysia also provided two briefing papers on 'Logging in Malaysia: Some Key Issues', and 'Modern Forest and Land Legislation and Native Customary Rights in Sarawak'.
However, social NGOs were not satisfied with the procedure especially due to insufficient time allocated for an open and broad discussion. This has led to a submission of a memorandum on FLEGT-VPA multi-stakeholder consultation meetings in 2007 JOANGOHutan and JOAS to the ministry expressing the concerns including unclear meeting structure, direction and procedures, irrational scheduling and agenda, recording, reporting and meeting documentation, and definition of legality. The memorandum particularly stresses that issues of native customary right, transparency, information accessibility, sustainability, and workers’ rights are inadequately addressed.
The 3rd consultation were participated by over a hundred people, of whom about one-fifth comprises of social and environmental and among them more than half are members the Sarawak Iban Dayak Association (SADIA). This is a sign of increasing concern of the indigenous peoples' rights in the Malaysian-EU VPA. However, several members of the social NGOs are barred from entering Sarawak. Among the list are members of the JOANGOHutan, they include Jannie Lasimbang of Pacos Trust, Sabah, Colin Nicolas of COAC, and Carol Yong both of Peninsular Malaysia. The control of individual citizens' movement within the country is being criticized not only as an abuse of power but also constraints the stakeholders' participation in the consultation process.
The Ministry continued to conduct the preparatory procedure without transparency and participation of other interested stakeholders. The 3rd consultation convener tabled Annex A to the Legality Definition that provides some details information regarding the key elements of the definition, and Annex B, Details of Control Procedures for LAS (Legality Assurance System) for the 6 principles with criteria, indicators, responsibility, procedure, outputs, ISO reference and verification for the three regions of Peninsular Malaysia, Sabah and Sarawak.
Much time of this one-day consultation was spent on the discussions of the two Annexes, which were said to have been drafted by several parties. Some of the concerns expressed by NGOs are highlighted.
The fourth multi-stakeholder consultation was conducted on 17th and 18th of March, 2008 in Kuala Lumpur. Social NGOs, including members of JOANGOHutan and JOAS, as well as a group of concern lawyers walked out on the second day after reading out a statement expressing their dissatisfaction especially with the lack of a democratic and open process in defining legality. Members of JOANGOHutan and JOAS met the EU delegation on the following day to explain their pulling out, and what it would require to re-enter the process.
The fifth Multi-stakeholder consultation was held on 11th and 12th of August, 2008 in Kuala Lumpur, in which three papers are tabled: (i) Independent Monitoring for the Timber Legality Assurance System; (ii) Market benefits; and (iii) Market Impact of a FLEGT VPA between Malaysia and the European Union.
JOANGOHUTAN and JOAS did not return to the consultation, however, on 15 August, 2008 the groups submitted their comments to the Ministry of Plantation and Primary Industry on outstanding issues on the definition of legality and the timber legality assurance system (TLAS). The Ministry's response dated 17 November, 2008, offered little or no new input.
On 15 October 2009, NGOs, including members of JOANGOHutan and JOAS were invited to a dialogue session with Bernard Dompok, the new Minister of Plantation Industries and Commodities. Social NGOs again expressed the concerns with TLAS that certain parts of the earlier versions were much better when compare withed to the current version, which has notably taken out the Land Code of Sarawak and the Sabah Land Ordinance in Principle 4 on User Rights. Representative from the Sarawak Attorney General Office explained that timber harvesting has nothing to do with the rights of the land.
In November 2009, JOANGOHutan and JOAS restated in a submission the demand that the definition of legality must include the clause that timber and its productions shall be free from aboriginal or native customary claims, and free from aboriginal or native territorial boundaries.
On 15 April 2010, JOANGOHutan released a report on the Logging of Sarawak and the Rights of Sarawak's Indigenous Communities and a press release calling on the Malaysian Government and the European Union to ensure that any decision leading up to the process when Malaysia and the EU are expected to sign the agreement must be based on procedures in accordance with existing national and international human rights laws and instruments recognising the rights of indigenous peoples, including the right to native customary lands, the right to development and the right to conservation of indigenous cultural heritage, based on native customs and laws.
For more information contact JOANGO Hutan in Malaysia. email: mchuo@yahoo.com