This memorandum to SUHAKAM raises 5 issues of Environmental Justice affecting traditional /inshore/artisanal fishers (nelayan) and fishing communities.
A. The project will inflict "permanent damage" on a sensitive coastal ecosystem, and yet was approved by DoE.
B. The authorities are not observing the "precautionary principle" for climate mitigation and environmental protection.
C. The project is a "sea grab" of the fisheries commons where traditional nelayan have enjoyed use rights for generations.
D. The rights of the nelayan stakeholders to "Free Prior and Informed Consent are being violated.
E. When the stakeholders tried to protest, the authorities attempted to interfere with the protestor's rights to "Peaceful Assembly".
A. Potential socio-environmental adverse impacts
The long list of negative environmental and social impacts of the Penang South Reclamation (PSR) are contained in various memoranda and petitions by Penang Tolak Tambak to the government. The points in brief:
1. The extent of environmental damage is acknowledged in the Malaysian Department of Environment’s letter of approval for the PSR project, dated 25 June 2019:
“…the development of the project will cause permanent and residual impact on mudflat ecosystems, fishing ground, turtle landing area, and some coral reefs in Pulau Rimau which is an important source of resources fishery. This permanent destruction will have a significant negative impact on the country's fisheries resources, fisheries and food security.” (translated)
Furthermore, the PSR project will generate 3.2 million tonnes of carbon emissions. Sandmining will destroy 820 square kilometres of seabed in Perak leading to the loss of fisheries, coastal erosion, and destruction of corals and turtle landing sites.
2. The extent of loss or impairment of nelayan’s livelihood is acknowledged by the Minister of Agriculture, speaking in Parliament on 16 July 2019:
“Penang South Reclamation (PSR) will affect 4909 nelayan on the island of which 1,422 comprise the traditional nelayan of Zone A. It is estimated that 51,184 metric tonnes worth RM595 million a year in marine fishery landings in Penang will be affected by this permanent destruction. The PSR project will also affect 511 aquaculture operations with a production of 45,742 metric tonnes worth RM 1.67 billion a year.” (translated)
Sandmining will also affect an additional 6,000 nelayan in northern Perak.
3. Small-scale fisheries will be devastated. In times of climate crisis and declining global fisheries resources, the UN Food Administration Organization (FAO) view sustainable small-scale fisheries as a key to food security and human rights. The impacts of marine pollution on inshore nelayan’s catch and the nearby fish farms will trigger price hikes in and beyond Penang, threatening the supply of seafood to B40 families and jeopardising national food security.
4. The National Physical Plan (2010) has clear policy statements forbidding coastal land reclamation (with the exception of reclamation for the development ports of strategic national importance). It proposes an amendment to the Town and Country Planning Act 172 to include coastal land reclamation projects under Section 22(2A) to bring them within the purview of the National Physical Planning Council to provide advice. This recommendation should be immediately implemented.
5. The PSR project goes against the principles of socio-economic inclusivity and UNDP’s Sustainable Development Goals, especially: SDG1 (no poverty), SDG8 (decent jobs & economic growth), SDG10 (reduced inequalities), SDG11 (sustainable cities & communities), SDG13 (climate action) and SDG 14 (life below water).
B. Not applying the precautionary principle in protecting the environment
Principle 15 of the Rio Declaration notes:
"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
Decision-makers have a responsibility to anticipate harm before it occurs. Caution should be further observed where there are indications of uncertainty and irreversibility, and it is the responsibility of an activity-proponent to establish that the proposed activity will not (or is very unlikely to) result in significant harm.
1. Large-scale reclamation projects will cause environmental degradation, leading to a decline in fisheries. The Seri Tanjung Pinang 2 (STP2, 760 acres) and Gurney Wharf (131 acres) undertaken in the seas north of Penang Island, is showing signs of time and cost overruns, marine pollution and damage to fisheries. At the Sessi Aduan Nelayan undertaken at Tanjung Tokong and Bagan Ajam, the majority of nelayan complained that their catch has dwindled by 50–70% since the project started.
2. The authorities have not responded adequately to rectify this existing case of environmental degradation. The Penang State Government and Department of Environment have a duty to assess the impacts of previous reclamation projects, and to evaluate whether future reclamation is advisable. While politicians may talk about the nelayan “leading better lives”, mitigating negative impacts and rehabilitating the fisheries, such an optimistic outlook has not been borne out by the STP2 experience.
3. The PSR project is expected to generate 3.2 million tonnes of carbon annually. If reported accurately, this will compromise Malaysia’s pledge to fulfilling its global climate goals.
4. The failure of the authorities to address environmental degradation suffered by existing stakeholders and future generations results in issues of gross environmental injustice. It is imperative that the issue of coastal reclamation be more widely understood so that the culprits harming the ecosystem can be held accountable.
C. Ignoring the traditional nelayan’s tenure rights to the commons
Productive coastal areas are not mare nullis (empty sea), but the fishing grounds and main source of livelihood to these fishing communities. Island creation and coastal land reclamation projects imposed through top-down policies are “stealing our seas”, inflicting sudden and long-term distress to our fishing communities, and threatening their very survival. The Food Administration Organisation (FAO) explains the concept governing tenure rights to the commons:
“Commons are natural resources such as land, fisheries and forests that a community, group of communities or group of people owns, manages and/or uses collectively to support their food security and sustain their livelihoods and well-being. Collective tenure rights are crucial for millions of people worldwide. Poor, marginalized, vulnerable and landless people rely most on commons, as they represent a source of income as well as a safety net in times of hardship for them. Commons are of important cultural, social and spiritual value to many communities worldwide and provide essential environmental services at local and global levels. The recognition of collective tenure rights to commons is, hence, a cornerstone to achieving sustainable development and the realization of the right to food.” http://www.fao.org/3/a-i5771e.pdf
1. Nelayan will lose the richest fishery in Penang waters. For generations, the traditional nelayan have been fishing in the sheltered, shallow seabed of Kawasan Selatan, and fishing communities have flourished along the southern cost of Penang. Yet their rights to the fisheries commons are not being recognized and respected.
2. The nelayan will lose access to fisheries. The channels between the 3 PSR islands are created ostensibly to allow nelayan future access to the sea, but this is a moot point as the marine ecoystem and fisheries will be irreversibly damaged and regular siltation of the channels will impede access. Frequent conflicts are anticipated to arise between the local fisherfolk and the developers’ dredgers and tugboats at sea, as well as between local community and developers’ workers over land access to beaches, amenities, road space etc.
3. Rich developers will gain a reclamation site but at the expense of the poor nelayan. The appropriation of sea and seabed of Kawasan Selatan for real estate development can be construed as a “sea grab” or “ocean grab” by state and big business, mainly to benefit privileged groups, including investors and property buyers. In fact, the state government is “trading off” the sustainable fisheries, fisheries commons, nelayan’s livelihood and food security for speculative economic gains.
4. The PSR project will put unprecedented demographic, environmental and housing pressures on local communities. Many residents, including nelayans’ families who are not property-owners, will be forced out by land price hikes and evictions. The breakdown of social cohesiveness will be speeded up, leading to loss of culture, heritage and way of life.
5. Current development in Penang Island South is already stressing the Kawasan Selatan community. Currently, 3 hostels for a total of 30,000 foreign workers are being built/proposed in the south; in some areas, residents will be overwhelmed 5 to 1 by foreign workers. The demographic changes caused by the projected 400,000 population on the PSR islands will further destabilize and displace the existing population of the kampung nelayan.
D. Not observing process of Free Prior and Informed Consent
Traditional fishing communities, like any indigenous peoples and long-settled local communities, are entitled to have a say in their own future. The Free Prior and Informed Consent (FPIC) principle is enshrined in the UN Declaration of the Rights of Indigenous Peoples and is also widely used to uphold the rights of local communities. Development for local communities without their FPIC – without them being involved in deliberations every step of the way – can be construed as a form of “takeover” of territory through “development aggression” foisted upon the stakeholders.
The Persatuan Nelayan Pulau Pinang formed under the Akta Persatuan Nelayan 1971 (Akta 44)), are the legitimate representatives of thousands of nelayan and other members engaged in the fisheries industry.
1. In a previous project (STP2), the fisheries authorities negotiated with the nelayan on behalf of the developers, bypassing the Persatuan Nelayan Pulau Pinang and pressuring the nelayan to accept the compensation or rather “consolation” (saguhati) offered by the developers, within a tight deadline, failing which the fisherfolk “would receive nothing”. The fisheries authorities which should be protecting the nelayan’s livelihoods, were implicated in influencing the nelayan to give up their livelihoods for a small “consolation” – this indicates a conflict of interest and possible abuse of power. In the deliberations for the PSR project, the fisheries authorities seem to be playing the same role. The LKIM should be called out and held to account.
2. The PSR EIA was approved by the DoE even though the Social Survey component showed that only 17 nelayan agreed to the reclamation and 94.5% of the nelayan rejected it. In a poll of 635 respondents in the Impact Area made in 2016 (breakdown 300 general public, 200 fishing communities, 100 local business operators, 35 beach users), 51.1% of respondents agreed to the reclamation, but the vast majority of those who agreed were not nelayan stakeholders. In addition, a Social Impact Assessment under the KPKT was conducted in early 2019, but not made public.
3. The Penang State Government has decided to go ahead with the PSR project without the Free Prior Informed Consent (FPIC) of the main stakeholders. The Department of Environment also did not seek the nelayan’s views before granting the EIA Report a hasty approval on June 25, 2019. The Persatuan Nelayan has repeatedly voiced their objections to PSR starting with a demonstration of 1,500 nelayan in December 2015, and has written memoranda appealing to the Prime Minister, the Governor of Penang, and the Penang Chief Minister, copied to various ministers, MPs and government agencies.
E. Attempts to obstruct the nelayan’s protest and memorandum handover
On 4 November 2019, the Persatuan Nelayan Pulau Pinang organised a protest called “Hari Solidariti Nelayan” in Padang Kota, Penang, participated by about 1,000 nelayan and civil society. The intention was to hand over a memorandum to the Chief Minister who was presiding over the Penang State Assembly in session that Monday.
Although the protestors followed the rules, it appears that the authorities attempted to obstruct or restrict the peaceful assembly, as shown by this sequence of events.
1. The Persatuan Nelayan wrote to MBPP on 13 Sept 2019 to use the public space at Padang Kota, The Penang Island Municipal Council (MBPP) only replied on 25 Oct – that is, 10 days before the event – to say the request could not be considered because the field was undergoing repairs, asking them to postpone or find another venue. In fact, only small areas of the field were being repaired and right up till the day of protest, normal public use of the field could be observed.
2. After several meetings with the police, a letter was issued by the police on Fri 1 Nov 2019, stipulating the conditions to be observed during the peaceful assembly on Monday, 4 Nov. Among the conditions: no procession, and only 5 representatives would be allowed to enter Dewan Sri Pinang to hand over the memorandum.
3. After initial speeches, 5 leaders of Penang Tolak Tambak walked from Padang Kota to the Dewan Sri Pinang to present the memorandum. The other protestors tailed behind. Halfway, the protestors were met by a barricade erected by policemen dressed in riot gear and armed with plastic shields. This “show of force” by the police in a peaceful protest might be construed as subtle intimidation.
4. Only 5 representatives were allowed to proceed but when they arrived at the fence of the Dewan Sri Pinang, they were stopped from entering the compound, despite the police letter. The Chief Minister refused to meet the representatives of the 1,000 strong protestors, and only sent the state information officer to receive the memorandum.
5. The Persatuan Nelayan Pulau Pinang and Penang Forum are very disappointed that the Penang government has refused to engage with the representatives of the protestors on Hari Solidariti Nelayan, 4 November 2019. This was the first protest in Malaysia to be held after the amendments to the Peaceful Assembly Act came into force on 1 November 2019, and we are disappointed that this government is not honouring the spirit of the amendments, guaranteeing greater freedom of assembly.