More than just timber

A RECENT news story highlighting logging in the forests next to Fraser's Hill prompted me to write this article. I had intentions of highlighting the inadequacies of our National Forestry Act 1984 (NFA) for some time now but kept putting it off in light of news that the Act was being revised and would be tabled in Parliament this year.

To date no federal bill to amend the forest law has been introduced. The silver lining arising from this delay is perhaps that there is still opportunity for stakeholders to influence the revision in some way. The issue of logging within or near sensitive areas such as water catchments or even protected areas has been ongoing. The fact that logging in such areas is permitted by the states only confirms the sentiments of many that states are failing to provide adequate protection to forests. There is still a lot of misinformation, confusion and overall lack of transparency and clarity on matters related to forest governance. This is partly attributable to the fact the NFA lacks effective provisions related to governance and accountability.

But before we address that, there are some technical issues to highlight.

The National Forestry Act 1984 was passed to promote uniformity of laws in respect of administration, management and conservation of forests and forestry development. The term "National" may logically connote that the law applies throughout Peninsular Malaysia automatically. In reality, the Act only operates in the peninsular states upon its adoption by the respective state legislative assemblies as the Federal Constitution provides that forests (and land) are matters for state governments to legislate. Thus, the Act was passed by relying on an exception within the constitution, whereby, federal laws may be passed by Parliament on a matter within the purview of states for the purpose of promoting uniformity of laws in two or more states. The catch is that states must ultimately adopt it for application within the state as state forest enactments. All states have done so; effectively making the NFA state law.

The last extensive amendments to the Act were initiated and passed in 1993. No notable or at least in my view praiseworthy amendments were made since then. Bear in mind though that states are free to amend their adopted forest enactments at any time to suit or meet any environmental protection, conservation and good governance needed but most states have only marginally done so.

Having highlighted the fact that the Federal Constitution places a limitation on the federal government's reach over forestry regulation in the states, it may seem futile to suggest amendments to the Act. But I advocate for it nevertheless, because there is a moral obligation on the federal government to demonstrate good governance principles through legal application and a duty to play an advisory and persuasive role to the states on such matters.

Ironically, provisions within the Act most in need of revision are those that are most often cited in relation to forest protection ie Sections 7 to 13; containing provisions that purport to declare what is known as permanent reserved forests (PRFs). Many may be familiar with the term "permanent reserved forests"; constituted (not exclusively though) to accord the necessary protection towards various forest values. A lay person would be forgiven for assuming that these "permanent forest reserves" are set aside in perpetuity for complete protection. Nothing of course could be further from the truth. Yes, while the states indeed do constitute PRFs, they are also permitted under the law to classify these PRFs as production forests for timber logging. This misnomer under the Act needs to be addressed and should no longer be perpetuated.

There is a requirement under the law for these PRFs to be classified (under one or more classifications) in accordance with certain forest functions ie water catchments, sanctuary for wildlife, flood control, etc. A flaw within the Act is that the state authority may alter the classification of any PRFs if there is a "change" in the purpose for which it was classified. The law neither provides clarity nor prescribes the circumstances in which a classification change is warranted. Given that the NFA's overall framework as it relates to forest protection is weak, it is reasonable to assume (until proven otherwise) that classification changes within PRFs are effected to allow reclassification to a timber production forest. The flaws don't stop here. The deathblow provision within the Act is that in the absence of any express protective classification by the state, forests so reserved are by default classified as timber production forests.

Let's address that issue of "permanence" now. Every land within a PRF may under the law be excised if the land is no longer required for its classified functional purpose or if it is required for an economic use higher than for which it is used. Although there are some rather loose and vague requirements to replace land so excised from a PRF with an approximate equal area of land, the fact that the protection is reduced to a numbers game demonstrates extreme short-sightedness, superficiality and provides no acceptable rationale in the environmental context.

To illustrate, how can water catchment A with site specific values and supporting various functions be replaced by water catchment B at another site? Necessary safeguards to ensure any real "permanence" to PRFs that serve an environmental purpose are virtually non-existent.

There is no obligation within the Act for the state to provide due notice of an intention to change classification or excise land from a PRF; only a post facto notification of the same via gazette.

There are no provisions for public consultation before such exercises. There are no provisions for access to information related to all forestry management matters; compounding the issue of lack of transparency.

The Act, in so far as it relates to the protection and conservation and management of PRFs are in dire need of amendments. The law needs to be clear on its protection policy; not continue with business as usual under the guise of providing protection. A complete revamp of provisions related to forest conservation objectives, prescribing the means of achieving those objective through regulation, public access to all forestry and forest protection related data, and the right of stakeholders to be consulted on matters affecting continued protection of forests are minimum requirements.

I would encourage the relevant minister to cause any proposed bill for amendments to the National Forestry Act to be subjected to an extensive public consultation exercise before introduction in Parliament.

Preetha is an advocate and solicitor. She has spent many years in the environmental conservation arena. Comments: letters@thesundaily.com