Sabah Environmental Protection Association

KOTA KINABALU: The move by the Environment Protection Department (EPD) in Sabah to unilaterally approve a massive aquaculture project is worrying seven non-governmental organisations here.

The NGOs want greater transparency and public participation in the evaluation of Envi­ronmental Impact Assessment (EIA) reports as all projects ultimately affect the people.

They were responding to the EPD director’s recent statement that he was not obliged to refer any matters back to the EIA Review Panel before a final decision is made in approving an EIA.

Datuk Yabi Yangkat had cited Section 12D(1) of the Environment Protection Enactment 2002, which stipulates that the EPD director was empowered to approve an EIA report even if no Review Panel meeting was held.

The NGOs – Sabah Environmental Protection Association (Sepa), Land Empowerment Animals People (LEAP), Indigenous Peoples Network of Malaysia (Joas), Borneo Rhino Alliance (Bora), Sabah Environmental Trust (SET), Save Open Spaces Kota Kinabalu (SOS KK) and Himpunan Hijau – believe EPD is moving backwards by interpreting the law so narrowly.

Sepa president Lanash Thanda said the role of the Review Panel could be considered obsolete, and the concept of public participation undermined.

“The recent statement means that NGO participation in the process is nothing more than a rubber stamping exercise.

“This is a breakdown of social and environmental safeguards as it allows for one authority to approve future EIAs without consultation,” Lanash said.

On Dec 19, EPD approved the EIA for a RM1.23bil shrimp aquaculture project in Pitas, despite an earlier rejection by the Review Panel that included SEPA and WWF-Malaysia.

The department also did not notify the panel members of its decision.

SET Chief Executive Officer Dr Rahimatsah Amat said the EPD’s Handbook on Environmental Impact Assessment in Sabah (2nd Edition) clearly mentions a public hearing and a review panel.

Rahimatsah, who claimed several activities had commenced in the last few years even while the Terms of Reference (TOR) were being discussed, added that this was a breach of section 7(1) of the Environmental Protection (Prescribed Activities) (EIA) Order 2005.

The seven are now seeking an appointment with the State Tourism, Culture and Environ­ment Ministry, under which EPD falls, to discuss procedures and issues related to the EIA process.

The group is also contemplating a public forum to create awareness on environmental issues and the EIA process.

“We are here to ensure that public interest is respected and protected.

“We do not have any other agenda,” Rahimatsah said.

Source: http://www.thestar.com.my/News/Nation/2015/02/22/NGOs-question-EPD-approval-Groups-want-greater-transparency-in-EIA-evaluation-of-Sabah-aquaculture-p/

KOTA KINABALU: The High Court here has declared that the alienation of 650 acres at Tanjung Labian in Tungku, Lahad Datu to the Federal Land Development Authority (Felda) is unconstitutional and therefore null and void.

Judicial Commissioner Datuk Douglas Primus, in his judgement on Friday, ordered Felda to pay damages to the villagers who were the successful applicants to the 650 acres.

Douglas declared that the Director of Lands and Surveys and the State Government of Sabah had acted unconstitutionally contrary to Articles 8 and 13 of the Federal Constitution in alienating to Felda the 650 acres which had been approved to the villagers in 1972.

He ruled that in alienating the land to Felda, the Director of Lands and Surveys had acted unlawfully.

On the issue of failing to enforce the agreement entered into by the State Government of Sabah and Felda to compensate the applicants by negotiation to purchase the land approved to the villagers, Douglas declared that the State Government of Sabah was in breach of fiduciary duty in failing to protect and safeguard the proprietary interest of the villagers in the land.

Felda, as a plaintiff, initiated the suit in 2011, applying to the High Court to evict the villagers from part of the land alienated to it, alleging trespassing by the villagers. The suit encompassed about 5,000 villagers from Tanjung Labian, Lok Buani, Tg Batu, Sungai Bilis and Tanagian.

The villagers in their defence denied trespassing and claimed native customary rights to the land and that part of the land was alienated to some of the villagers by the Department of Lands and Surveys following the approval of the State Government of Sabah in 1972.

The villagers as defendants also counter claimed against Felda, the Registrar of Titles, Assistant Collector of Land Revenues of Lahad Datu, the Director of Sabah Lands and Surveys and the State Government of Sabah seeking relief, including declarations and damages.

According to one of the four sued defendants, Asrafal Alin, a representative of the villagers, sometime in 1970, the native communities led by his late father KK Alian Bin Som had applied for three plots of land at Tanjung Labian.

In 1972, following the approval of the State Government, the Director of Lands and Surveys Sabah alienated and surveyed 650 acres to the applicants.

“However, the Department of Lands and Surveys did not proceed to issue the land titles to the successful applicants despite the lapse of time.

“Sometime in 1979, the State Government of Sabah had agreed to allow a Federal Government agency, Federal Land Development Authority or known as Felda to develop more than 200,000 acres including the land located in Lahad Datu at Tanjung Labian,” Asrafal said.

“Sometime in 1982 or 1983, Felda entered the land to carry out site clearing and oil palm planting activities and planted oil palm in the land alienated to the villagers at the location now known as Sahabat 22,” said Asrafal.

“I am very grateful for the decision of the High Court. It has been very demoralising and humiliating to me and my family, especially to the villagers who are the children of the applicants, that as the rightful owners and successors of the land, we were subject to such eviction proceedings by Felda.

“Worst still, my fellow villagers who were under employment in Felda were sacked by Felda because of their commitment to defend the land. We are also grateful to our lawyer Datuk Kong Hong Ming who has helped to defend the case against us on a pro bono basis,” said Asrafal.

Douglas, in his judgement, found that no evidence was adduced to show that the letters of offer were withdrawn or cancelled, and consequently, the letters of offer are valid and binding. He also found that the relevant authorities had acknowledged and accepted the proprietary interest of the applicants in the land.

Consequently, the contention that the applicants were in breach of the terms of the letters of offer had been waived and overtaken by events for the reason that Felda and the Sabah State Government had agreed to compensate the applicants by private treaty to purchase the said land. As a result, estoppel set in to bind the parties.

Douglas said that even until today, Felda has yet to negotiate with a view to purchase the said land from the successful applicants.

As to the saguhati (consolation) payment of RM32,500 allegedly paid by Felda, Douglas found that the evidence adduced was only an internal accounting statement which could not be proof that payment was made to every applicant. In any event, compensation must be paid to the applicants by negotiation to purchase the said land. Such saguhati payment did not have any legal consequence and did not amount to any compensation.

As to the other issues for determination, Douglas ruled that the applicants’ claim was not barred by the Limitation Ordinance or the Land Acquisition Ordinance and damages shall be assessed at the date of the judgement.

Felda as the plaintiff was represented by counsel Gani Zaleka, the defendants were represented by Datuk Kong Hong Ming, the Director of Lands and Surveys and State Government of Sabah by State counsel Mohammad Abdul Sani.

Caption: Some of the villagers outside the courtroom.

Source: http://www.dailyexpress.com.my/news.cfm?NewsID=97261