Dam Building Raises Troubling Questions about Local Laws
11/9/97
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Headline: Dam Building Raises Troubling Questions about Local Laws
Source: Earth Times News Service
Date: 11/9/97
Author: Leyla Alyanak
Copyright 1997 The Earth Times All rights reserved.
UALA LUMPUR -- The debate churning around the
building of Bakun Dam in Sarawak has raised doubts
about how well Malaysia's laws protect its environment.
Under the Environmental Quality Act of 1974, 19
activities--building dams is one of them--require an
environmental impact assessment (EIA) which must then be made
public. The whole point of an EIA is to uncover potential
environmental damage from a development project, and to
recommend ways to prevent it. It helps developers weigh
environmental costs as well as the usual economic ones when
planning projects. In fact, the EIA is a cornerstone of
sustainable development and enshrines the notion that
development and environment can be on the same side. But in
Malaysia, something in the process has gone wrong.
The $5.5 billion Bakun Dam has always been environmentally
and financially controversial. From the start, NGOs warned it
would flood forests, resculpt landscape and displace people,
causing a far more than acceptable level of damage. The
project was studied, promoted, shelved, dusted off, and
reburnished, finally springing back to life in 1993. To
placate its vocal opponents, the government promised the EIA
process would be respected in full and that assessments would
be made public before construction went ahead.
But that didn't happen.
While the preliminary EIA was approved by the department of
the environment as stipulated, the next phase, the first part
of the detailed EIA, was not. Instead of being examined by a
joint federal and state panel, the Sarawak state government
hijacked the process and approved the EIA unilaterally. Its
rationale: the process requiring an EIA to be made public is
a federal one, but jurisdiction over land use, water, rivers,
soil and forests belongs to the state, in this case to
Sarawak. Sarawak does not require EIAs to be made public
before a project is approved.
Three local longhouse residents who stood to lose their land
because of the dam disagreed and took the developer, Ekran
Berhad Limited, to court. They won. In June 1996, a landmark
judgment by Malaysia's High Court ruled in their favor and
ordered Ekran to comply with federal law.
"The most notorious difference is the absence in the Sarawak
order of the right of the public to a copy of the EIA, and
the right to be heard and make representations before the
approval is granted," said Justice James Foong in his
decision. "It makes a mockery of the whole issue to say the
EIA can be approved first and if the public has any
constructive ideas, they can submit later. This cerainly is
illogical, deprived of good sense and sound reasoning."
Victors were elated, but not for long. Less than a year
later, the Court of Appeal reversed the decision, confirming
the state's jurisdiction over natural resources and its right
to approve development projects. By implication, federal
jurisdiction on the EIA process was actually an encroachment
on the state's rights.
As the Bakun project moved forward, so did protests by
opposition politicians and NGOs. To each government response,
they had a question and of course their main concern was lack
of transparency. A coalition of anti-Bakun NGOs attacked the
dam on all of fronts. It is not a renewable energy source,
they said, and Malaysia simply doesn't need it. They
questioned costs, compensation and relocation plans, and
publicized the dam's environmental and social impacts.
They urged the government to release the remaining portions
of the EIA for public review, and called on it to address
indigenous concerns by making resettlement plans public. They
demanded all work on the dam to be stopped until these points
were addressed.
The jurisdictional issue is potentially devastating. If
states can pre-empt the federal EIA process, NGOs say, then
Bakun could be just the first of many environmentally
damaging megaprojects rammed through a loophole in a
procedure originally designed to protect the environment, not
help destroy it.
"If anything, the whole Bakun saga demonstrates one point --
there is confusion even amongst the government agencies as to
the EIA process," said Cecilia Oh, Environmental Policy
Analyst at WWF-Malaysia. "If it was clear that the Sarawak
state government had jurisdiction over the EIA process for
Bakun, why did the EIA report go to the federal department of
the environment in the first place?" While natural resource
issues are state matters, she said, this should not
invalidate federal legislation. "Environmental issues
transcend state boundaries, and the consequences of
environmental degradation frequently affect areas far away
from the source. Therefore, there is a clear rationale for
the federal government to act to ensure that the same
measures and standards are applicable throughout the
country."
Even when it is applied properly, the federal EIA process
isn't absolutely limpid. According to WWF-Malaysia, EIA
reports are often submitted late, since there is no legal
deadline. Public consultation is not required, and
authorities in any event do not have to actually listen to
what the public says. There is little accountability, since
reasons for not proceding to detailed EIAs after a
preliminary assessment are not made public. Finally, after
approval of the EIA and the project, there is no specific
legal requirement for monitoring of project implementation.
In other words, whatever the EIA's recommendations,
developers are not bound to follow them.
Malaysia's financial belt-tightening and the appeal the three
plaintiffs have lodged with the country's highest court have
clouded the dam's future. Since Bakun has been deferred
rather than cancelled, NGOs are maintaining their pressure.
As a last line of defence, they argue that Malaysia has
signed the United Nations Convention on Biological Diversity,
which requires signatories to introduce public EIA procedures
for projects likely to harm biodiversity.
By flooding 80,000 hectares of forest, Bakun qualifies.