(Paper Presented At The Energy Justice Conference At Boulder, Colorado, USA On 24th And 25th October 2009)

According to the 2007 UNDP report entitled Energy and Poverty in Malaysia – Challenges and the Way Forward” (the UNDP report), more than a billion people in the Asia-Pacific region do not have access to electricity and 1.7 billion are dependent on traditional biomass fuels for domestic use. The report acknowledges the “strong link” between access to affordable and sustainable sources of energy, with poverty.

Some salient facts about Malaysia as averted to in the report are helpful. Malaysia covers a total area of 329,758 square kilometers. It comprises Peninsular Malaysia and the states of Sabah and Sarawak. Sabah and Sarawak are separated from the Peninsular by the South China Sea. Although Sabah and Sarawak make up for 60% of the total land area, they contain only 20% of the country’s population.

Our natural resources are plentiful. We have rubber, palm oil, petroleum and natural gas. We have moved from an agricultural to an industrailised economy and we have sustained economic growth. By this report, Malaysia has fared well in its efforts to eradicate poverty.

The UNDP report makes the following findings which are relevant :-

1. Malaysia is ranked among the most developed and industrialized countries in the Asia Pacific region.

2. There has seen a significant poverty reduction over the past few decades.

(3) The country has extensive electricity coverage including in rural areas.

(4) However, remote areas of East Malaysia still suffer a lack of cleaner sources of energy for heating and cooking.

5. Fuelwood and kerosene are relied on in these remote areas for cooking, thus posing an enormous challenge to poverty reductions.

The report draws these relevant conclusions in relation to the rural communities and gender issues namely :-

* Gender disaggregated data on female income and employment (in terms of energy) are not methodically collected. The impact of electricity and renewable energy on women below the poverty line in rural Malaysia is yet to be evaluated and addressed.

* Poverty among women is a major concern and has caught the attention of the policy makers. Several non-profit organizations and banks have provided assistance to women in the lower income group. For example, cook stoves were provided to women in fish and agro processing enterprises. However there is a lack of monitoring of the impact of these programmes on rural women.

* There is a need to recognize and emphasize the involvement of local communities particularly in the rural areas in Sabah and Sarawak in adopting renewable energy sources.

* Renewable energy particularly in Sabah and Sarawak must be encouraged and promoted.

It would seem that compared to some of its neighbours, Malaysia has received a fairly positive report from the UNDP in relation to the providing of energy and the eradication of poverty.

The Indigenous Peoples of Malaysia

There remain however, marginalised groups who require special attention. These are the indigenous peoples of Malaysia, or the “Orang Asli”. There are 19 subgroups of the Orang Asli spread throughout Peninsular and East Malaysia.

The tremendous efforts of the Malaysian government to eradicate poverty appears to have eluded the Orang Asli peoples for years although some efforts are now being made to provide alternative sources of energy to the communities for their domestic use.

Poverty is widespread among the Orang Asli. Even attempts to provide some basic utilities like electricity and potable water have been recent and many of the indigenous people in the remote interior and less accessible areas particularly in Sabah and Sarawak have been excluded and have not benefited from these efforts.

It is not possible to discuss the issue of the Orang Asli without referring to their on-going struggle with the Government, and the plantation, construction and logging industries over their ancestral lands and their environment.

Colin Nicholas (an academic and well known activist in Orang Asli issues) in a paper presented in October 2007 states the problem thus :-

“Today, as it was in the past, the Orang Asli are locked in a dynamic struggle with the wider society over the control of resources they declare as their own, over attempts at denying and redefining their cultural identity, and over concerns of political access and economic distribution…..”.

He further says :-

“….. To the Orang Asli, the environment is more than a collection of water, animals, plants and landform. It is the basis of their spirituality and the source of their identity. It is to be treated with appropriate respect and must be kept in balance. Disrupting this balance (such as through pollution, over-developing, or over-hunting) will only result in tragedy, not just for the environment but for the people as well….”

The issue of energy justice in the case of the Orang Asli is not distinct nor separate from the struggle they are presently facing in relation to their ancestral lands.

The Orang Asli are masters in the preservation of their environment. They know every shrub, leaf, flower and herb in their environment. Their environment contains their food, their medicine, their livelihood and they have a spiritual relationship with it. Their environment is nurtured with loving care and preserved in pristine condition by methods handed down through generations. Their knowledge of forest products and their medicinal value should be protected. They operate on a code in relation to the use of their resources1. They believe in collective ownership and the sharing of the harvest of crops and hunted game. They respect all plants and animals alike. The land and its biodiversity are intrinsic to their identity as Orang Asli.

There are many instances where the authorities or businesses have ridden roughshod over the rights of the Orang Asli to their ancestral lands which have very often been taken away with no compensation paid to them. For example, in 1995 the State Government of Selangor forcibly acquired ancestral lands of the Temuan tribe in order to build a highway. The matter was taken to Court by one Sagong Tasi, an Orang Asli. (See Kerajaan Negeri Selangor & Ors v Sagong Tasi & Ors [2005] 4 CLJ 169).

The High Court Judge awarded the Orang Asli compensation. The matter went to the Court of Appeal who upheld the decision. In interpreting the Aborigines Peoples Act 1954 (the 1954 Act), the Court of Appeal held that this Act having its purpose to protect and uplift the Orang Asli of this country is fundamentally a human rights statute. The Court went further to say “It acquires a quasi constitutional status giving it pre-eminence over ordinary legislation. It must therefore receive a broad and liberal interpretation. There is high authority that establishes these propositions..”

It was concluded in the Court of Appeal that the Plaintiffs had customary community title to the land in question. It is clear that the Courts play a pivotal role in upholding the fundamental rights, particularly of communities who are marginalised and oppressed.

The other activities that encroach on the environment of the Orang Asli like logging activities, destroys the biodiversity of the area and in many instances brings about untold social problems and damage. In the last year we have received reports of the sexual abuse of 10 – 12 year old Penan girls in Sarawak, by loggers. Despite the fact that the Ministry of Women and Family Affairs has confirmed these crimes, the Sarawak authorities have not brought the perpertrators to book. The rape took place in some instances when the girls traveled to school in timber company vehicles.

Energy Development activities and its effect on the Orang Asli, particularly the Women

In its quest to meet the country’s demand for energy and to fulfill its aim to supply electricity to homes and villages, including to the Orang Asli, several projects have been undertaken.

However, in some instances such activities have resulted in the displacing of the Orang Asli resulting in severe economic and social problems. This is then the other side of the energy justice debate. How far should any government go in its expansion of its energy resource if it results in the displacement of people to their detriment?

Carol Yong a feminist researcher and activist from Malaysia reported in the July 2001 issue of Energia News that between September 1998 and April 1999, some 10,000 indigenous people from Sarawak, Malaysia were uprooted from their ancestral homes to make way for the “Bakun Dam”. The matter went to Court where the Orang Asli succeeded in the High Court. The Court of Appeal however allowed the appeal against the Orang Asli citing inter alia a lack of “locus stand” for them to apply for the relief in question.

In this instance, Carol Yong notes that “An illustrative case is the situation of women from the Orang Ulu indigenous communities in the Asap Resettlement Scheme in Tubau, Sarawak, displaced to make way for the now deferred Bakun Dam Hydroelectrical Project (BHEP). In the old settlements, women could easily access nearby gardens and fields by walking, or fields further way by driving their own boats. Now that the farms are much further away, the land transport to reach them is so expensive that the women have to remain behind while the men go to the farm. Thus, the women cannot carry on the rice planting traditions and rituals.”

Carol Yong then ask the question “How do dam projects and resettlement affect gender relationships and the power structure? She argues that such resettlements affect the equal control over ancestral land that women have with men and are thus relegated to a “lower” social status visa-vis their male counterparts.

Furthermore, before resettlement, both men and women equally derive their daily support from the same land. Resettlement of the Orang Asli is very often to areas vastly different from what they are used to (for example resettling Orang Asli dependant on the rivers to high ground). This has resulted in the men seeking their fortunes away from the resettlement areas thus leaving the women in charge at home. In these instances the impact on the women is tremendous. From data that Carol Yong collected from the Tampasak resettlement village in Sabah, she found that nearly 1/3 of the households were female headed for this reason. These women go to work, and take care of the home and the children, single handedly. Furthermore, the social structures differ when the communities are so spread out. Compensation paid by the resettlement may not also be directed to the women who thus lose out on their social balance vis-à-vis the men.2

Biomass Energy in Malaysia

The main source of biomass energy in Malaysia is palm oil mill residues, rice husks, wood processing and forest residues. Palm oil is now promoted actively by the government as its “fifth fuel” resource besides oil, gas, coal and hydro. This “fifth resource has been recognized in the UNDP report referred to earlier. There is no doubt that there is tremendous support for palm oil as a source of biomass energy by the Government and other agencies.

It has been reported however, that in Malaysia, palm oil plantations are responsible for 87% of the deforestation. Indiscriminate forest clearings for the purposes of making way for palm oil plantations which encroach on the ancestral lands of the Orang Asli resulting in their resettlement, give rise to the same problems discussed earlier. The efforts to improve energy resources takes a toll on the lives of the indigenous peoples of Malaysia . In August 2009, the Malaysian Indigenous Peoples Organisations Coalition called for a moratorium on large scale tree plantations saying “ In Sarawak more hardships are in store for the Indigenous People. In Sarawak, our communities are yet to face the worse in the near future. As the sun sets on the timber industry in Sarawak, the current state government is energetically seeking to diversify and broaden its revenue via land development for oil palm plantations and large-scale trees plantations. These land development activities has time and again encroached into the lands and forests of various indigenous communities which claim native customary rights (NCR) over these territories.”

The Empowerment of Women

There is no doubt that a large number of people in developing countries, particularly in rural areas, still use traditional fuels such as wood, charcoal and dung for cooking. These impact largely on women who see to the supply of these fuels to their households and who often have to carry these loads over long distances. Women also do most of the cooking and with them, their children are exposed to health hazards, due to the smoke particularly from indoor fires. Such exposure can lead to respiratory illnesses, lung diseases and eye problems.

In some of these areas, women’s roles in collecting fuel and in having to cook, leave them with little time for education. Energy policies must be gender sensitive and must address these differences between men and women. Education is key. Financial resources are key. The provision of cooking stoves and alternative energy sources is also critical. There have been moves to encourage the use of solar energy in some of the rural parts of Malaysia.

The empowerment of women must also necessarily involve programmes to educate them on their rights so that they become less vulnerable and so that they become more involved as agents of change in their community. It is also important that they become part of the decision making process in relation to energy issues.

The U.N. Conference on the status of Women in Beijing in 1995 identified 12 critical areas where women are particularly affected and where there must be positive change. One of these areas is that of the deterioration of the environment where it was recognized that “the deterioration of the environment and depletion of natural resources negatively affects the health and well-being of girls and women differently from boys and men”. The other is poverty where it was noted that “women are caught in subsistence level activities (i.e. gathering fuel, hauling water) with little or no time to develop economic activity.

A Constitutional Approach

The Court of Appeal (and the Federal Court) has liberally interpreted Article 5(1) of the Federal Constitution which provides :-

“5. Liberty of the person.

(1) No person shall be deprived of his life or personal liberty save in accordance with law.”

The Court of Appeal in the case of Tan Teck Seng @ Tan Chee Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 782 stated as follows :-

“… I have reached the conclusion that the expression “life” appearing in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment….” (emphasis mine)

I would therefore found my argument for energy justice and the protection of the energy oppressed poor by returning to the fundamental liberties as provided in our Federal Constitution. The Rule of Law and the Federal Constitution may mean little in the remote areas of East Malaysia, until our justice system breathes life into it by recognizing and upholding their right to life in every sense of the word.

Footnote

That this is the focus of this Conference is commendable. It is an area that I must confess I have no expertise in. I am grateful for the research that I have had to undertake in this area which has enriched my knowledge on the far reaches of justice and the rule of law. I in turn would like to take back to my country what I learn here on this pressing issue. It is a matter we must all take an interest in. I thank you for the opportunity this Conference has presented to me.

References

1. Deliberations at the National Roundtable on BIODIVERSITY and INDIGENOUS KNOWLEDGE SYSTEMS in Malaysia.

2. Carol Yong on Hydro Development: Impact on Indigenous Women’s Lives. ENERGIA News Vol. 4 Issue 2, July 2001.

3. Indigenous Peoples Call For A Moratorium On Large-Scale Tree Plantations, Indigenous Portal (Friday, 04 September 2009) http://www.indigenousportal.com/Environment/Indigenous-Peoples-Call-For-A-Moratorium-On-Large-Scale-Tree-Plantations.html

4. UNDP - Energy and Poverty in Malaysia (Challenges and the Way Forward), Regional Energy Programme for Poverty Reduction, UNDP Regional Centre in Bangkok.

5. Indigenous Knowledge & Biodiversity in Asia – Asia Indigenous Peoples Pact Foundation, Proceedings of the Asian Regional Conference on Indigenous Knowledge and Biodiversity – 30 September – 3 September 2003, Hanoi – Vietnam.

6. The Department of Orang Asli Affairs, Malaysia – An Agency for Assimilation – Asian Indigenous & Tribal Peoples Network, October 2008.

7. Food First, Sustainable agriculture can feed the world. It cannot feed our cars – The Greens, European Free Alliance in the European Parliament, Position Paper on Food Security and Plant Fels, 5 October 2007.

8. Initial Study on Increasing Productivity of Orang Asli in Malaysia, European Journal of Social Sciences – Volume 8, Number 3 (2009).

9. Orang Asli and the Constitution, Protecting Customary Lands and Cultural Rights, Colin Nicholas – Paper presented at the 14th Malaysian Law Conference, organized by the Bar Council of Malaysia, 29-31 October 2007, Kuala Lumpur Convention Centre.

10. Monitoring Progress Towards Gender Equality in the Sixth Framework Programme, Sustainable Energy Systems (Executive Summary ) – A study for the European Commission by Maria Caprile (ed.) and others, European Research Area, February 2008.

11. Case Study on Energy and Women – GENERATING OPPORTUNITIES, United Nations Development Programme (Sustainable Energy).

12. Progress on Linking Gender and Sustainable Energy – National Renewable Energy Laboratory, March 2000 *NREL/TP-550-27999.

13. Biomass Technology, Energy Information Bureau http://eib.ptm.org.my/?page=article&id=50

14. Biomass Energy in ASEAN Member Countries, SDdimensions, October 1997 www.fao.org/sd/egdirect/egan0008.htm