This article first appeared in The Edge Malaysia Weekly on June 17, 2024 - June 23, 2024

In the pursuit of net-zero emissions, it is inevitable that there will be an increase in hydroelectric dams and solar farms for renewable energy; mining for rare earth elements (REE) that are needed to build electric vehicles, solar panels and wind turbines; and carbon credit projects in forests.

Unfortunately, the negative social and environmental impact of these activities on vulnerable populations — such as the indigenous tribes whose ancestral lands are in the forest — will also increase.

“Just last night, people from my village had to wake up and chase an elephant away. We cannot sleep well because we are constantly worried about our safety and our source of food. In February, 15 families from the villages couldn’t harvest their paddy because it was destroyed by elephants and other wildlife,” said Nur Mohd Syafiq Dendi from Kampung Pos Simpor in Gua Musang, Kelantan, in March at an event organised by Suara Rakyat Malaysia (Suaram).

Nur Mohd Syafiq was representing Jaringan Kampung Orang Asli Kelantan (JKOAK), comprising over 3,000 Orang Asli from 17 districts in the area, to protest the Nenggiri hydroelectric dam that is being built.

The dam will submerge two villages and negatively impact at least seven villages along the Nenggiri River, the group says. For instance, the roads that connect the villages to the town will be moved and significantly increase their time of travel, and as almost 5,384ha of forest will be submerged, wildlife conflict is bound to increase.

The latter is already happening more frequently due to logging activities in Kelantan, they say, including near their villages.

“We are worried about losing our ancestral land, and when this dam is completed, wild animals, especially elephants and tigers, won’t have a habitat to live in and hunt, so they enter our villages and destroy our crops. Two cases occurred in my village recently. A tiger injured one person but another person lost his life,” said Alak A/C Pgr Asu from Pos Bihai.

The submerged areas will include places of importance for the Orang Asli, such as burial and hunting grounds. Gua Cha, which is the site where a prehistoric human skeleton was discovered, will also be lost. According to reports, Tenaga has been conducting excavation work with researchers at the Nenggiri Valley to salvage human remains and archaeological artefacts from several ancient caves.

“We will lose the culture of the Orang Asli, which has a close connection with the land. Our tradition is to bersewang (a traditional dance to appease spirits and seek guidance on health and other issues). If our land is submerged [for the dam] and exploited for logging and mining, we will lose our culture,” says Alak.

The Orang Asli from JKOAK claim that Tenaga Nasional Bhd only consulted two villages for the environmental impact assessment (EIA) and social impact assessment (SIA). But the indirect impacts will fall on the other villages.

“My village is on low ground. If they build a dam, there is a likelihood that my village will be flooded too. I’m worried,” said Nora from Kampung Angkek in Kuala Betis, who adds that land exploitation from other parties has also occurred.

“The forest [around my village] is permanently protected forest, but why is it botak (logged)? We have lost our source of water. There is also an oil palm plantation above our water source. During the flooding season, the chemicals used in the plantation will pollute our water. We are worried.”

According to news reports from 2022, Tenaga responded to JKOAK’s protest, said it would work closely with the Orang Asli communities and took note of the objections. It also said it had engaged with the communities and that the project would deliver positive socioeconomic impacts, and the resettled Orang Asli would receive compensation and rubber plantations.

JKOAK is again calling for the government to stop the Nenggiri dam project. They are planning to submit a report to the Malaysian Anti-Corruption Commission and meet the prime minister and other members of parliament. Non-governmental organisations, including Suaram and Persatuan Aktivis Sahabat Alam (Kuasa), are assisting them in the case.

“The government said this is to mitigate flooding. But if you don’t log the forest, then there is no flooding … Don’t just think about profits. Think about the future generations,” said Nur Mohd Syafiq.

The Malaysian government is also keen to become an REE powerhouse, and many states have identified potential sites for the mining of these minerals. The question is whether this can be done sustainably without having a negative effect on the environment and community.

Since 2019, Orang Asli families from a community in Pos Lanai, Pahang, have been fighting an REE mining project that was approved by the state government but whose EIA was rejected. The Orang Asli say the mining will cause pollution of the Telum river and tributaries, which are the main sources of water for many communities.

According to reports in 2020, the group continued its protests as they learnt that the government planned to conduct studies on the mining projects in several of their villages again.

“Although the government said REE mining would not involve any clear felling of forests and said they would be using ammonium sulphate [for in situ leaching], but if you use the chemical excessively, it will leak into the groundwater. The water will flow to the river, which is the main water source for Orang Asli,” says Hafizuddin Nasaruddin, president of Kuasa.

“When people claim that electric vehicles are green, it’s not really green [when you consider] the impact on the upstream supply chain.”

In November last year, there were concerns that REE exploration in Mukim Kenering, Perak, would pollute Sungai Perak. There were also allegations that it was taking place in environmentally sensitive areas, although these have been denied by the government.

On the other hand, carbon credit projects generated from forests have attracted criticism for failing to consider the needs and rights of the indigenous people.

For instance, carbon credit projects by Shin Yang and Samling in Sarawak have been scrutinised by activists for this reason. A forest carbon agreement signed by the Sabah government with Hoch Standard Pte Ltd, has also been spotlighted for its lack of transparency and engagement.

“It will always be indigenous peoples and local communities who will be the victims of the blind spots of the energy transition. We fear that much of the critical minerals needed for the energy transition will be in permanent forest reserves and environmentally sensitive areas, including over the customary lands of the indigenous peoples,” says Meenakshi Raman, president of Sahabat Alam Malaysia.

EIAs, SIAs and the free, prior and informed consent (FPIC) process are supposed to prevent those projects that will result in negative social and environmental impacts from occurring. However, these measures have been criticised for the lack of transparency, inaccessibility of the reports by the public and improper engagement processes. It is sometimes seen as merely a compliance measure taken by project developers, where feedback from local communities is ignored.

“They don’t do the consultation collectively … Somehow the consultants only speak to the tok batin and say everyone agreed, when that’s not the case in reality. I don’t think FPIC is done well,” says Hafizuddin.

“For the Nenggiri dam case, the EIA report was published two to three days before the closing date [for public feedback to be submitted], and when I asked the local leader to get the report from officials, the officer wouldn’t give it and said it was a secret document [when it’s not].”

The FPIC process is an especially murky one.

“In Malaysia, while there may be a requirement to do SIA, there are no existing federal and state laws that provide a clear requirement to conduct a proper and meaningful FPIC process for indigenous and local communities,” says Meena.

“A meaningful FPIC allows indigenous peoples to provide, withhold or withdraw consent, at any point, regarding projects impacting their territories. Further, existing processes on SIAs do not require public display and consultations on the findings of such studies and are therefore not meaningful for local communities and indigenous peoples.”

Indigenous customary land rights often come without any document of title or status, even if the tribes have lived on the land for generations.

“If this issue is not critically addressed first, the rush into trading forest carbon credits or mining for critical minerals risks perpetuating the systemic causes of violations of indigenous customary land rights and territories in Malaysia,” said Meena.

She points to cases where indigenous people have sued state governments for projects or concessions being approved on what is claimed as their land and forest.

“When state governments refuse to recognise the rights of indigenous peoples to their lands and forests in the first place, even having safeguards will not guarantee their rights.”

Policy and legal reforms on land, forestry, conservation and other natural resource governance must be undertaken, she adds, and land-based climate measures must respect the rights of indigenous people.

Financial institutions, meanwhile, must develop an understanding of indigenous customary land rights issues when formulating their investment and financing policies. They must recognise the difference between “consultation” and “FPIC”, says Meena.

“These measures cannot simply be voluntary in nature but must have the force of law. The financial institution should require companies and their direct and indirect suppliers to respect the right of indigenous peoples to give or withhold FPIC if they could be affected by planned operations.”

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