Preventing the next Lynas or Raub mine

SEPT 6 — Communities around Malaysia have been protesting over development projects such as the Raub gold mine, the RAPID Pengerang refinery, the Lynas rare earth plant, dams in Sarawak, the MRT, and the Kuala Lumpur Outer Ring Road (KLORR).

At the heart of their disgruntlement are fears over the health and environmental impact of the projects, and the potential loss of their homes or livelihood.

Most of these projects have been passed without much knowledge of local residents. The technical nature of the dangers posed by such projects is often difficult for communities to comprehend quickly without the help of sympathetic experts.

They are initiatives that appear to have been settled at a higher level between developers and government.

The often poor communities near these projects usually lack the power and finances to roll back such projects once they are started, although it would be a mistake to underestimate the power of sustained organising and campaigning to change things.

It will be tough to resolve these existing cases in a manner that reconciles industrial interests, political patronage, and the rights of communities or nature. The scientific “facts” of the dangers invariably become highly politicised.

However, there is a relatively simple solution that could help prevent such disputes from arising in the future.

The Environmental Quality Act 1974 requires an Environmental Impact Assessment (EIA) to be produced when projects of a certain class or scale are proposed.

The EIA is supposed to be a measure that acts to prevent destructive projects, or at least mitigate any harmful aspects. Although focused on environmental factors, it includes social assessment, including some obligation to consult with affected communities.

There are two major problems with the present EIA process.

One is the independence of EIA consultants, the second is the weak role given to community consultation and approval.

1. Shift full responsibility for EIA process to DOE

Currently, the Department of Environment (DOE) requires developers to submit the EIA report. This report is funded by the developers, therefore its independence and objectivity is compromised.

Consultants who don’t produce a report that ultimately favours the project will find themselves passed over in favour of consultants who can more reliably produce positive recommendations.

A better solution would be to require the DOE to have the responsibility of conducting the EIA. Developers would pay assessment costs into a blind fund administered by the DOE.

In this case, technical experts and consultants engaged by the DOE would have a fiduciary duty to the DOE and, by extension, to the public interest, rather than a private developer.

This is the method taken in the US by its Environmental Protection Agency. Now, just because this happens in the US doesn’t necessarily make it an impeccable idea, but from the standpoint of independence and integrity of technical advice, it is clearly better than our present system.

Government agencies can still be captured by private interests, but they will still have to reconcile that with their formal duty to the public interest.

2. Implement free, prior and informed consent (FPIC) as part of development process

Development that happens without consultation is oppressive to communities. Discovering one fine day that there is highway about to plough its way through your house is upsetting.

Having your development project picketed, protested and pilloried in public is also a weight on developers. But that’s what happens when you don’t consult sufficiently with local people. That’s what happens when you think it is sufficient to secure “buy-in” at the political level in order to carry out your project.

Free, prior and informed consent (FPIC) is an approach outlined in international human rights law and declarations. It essentially upholds the right for project-affected peoples to be consulted by, and to negotiate with, project developers on the impact of a project on their community. Greater weight should be accorded to a community’s right to say “No” to a project.

At its heart is the idea that the pre-existing moral and property rights of residents should balance the privileges granted to the yet-to-be-constructed property of a private developer.

Instituting such rights within the EQA, or within an equivalent law, will not mean the end of development in Malaysia. It will mean that development planning will not be something that can simply be imposed from “on high”, rather it must be negotiated with affected peoples.

Implementing these two reforms would go far in improving the integrity and credibility of the EIA process and preventing, or at least reducing, instances where development projects are “sprung” on communities, which leads to campaigns, lawsuits and political problems.

Communities can feel much more secure in their rights to property, health, and a clean environment.

Developers should have greater confidence that their projects can proceed without significant interruption, delay or reputation problems following adequate consultation.

We all know democracy has great room for improvement in Malaysia, but it is strengthening as expectations grow. Granting greater rights to project-affected peoples and communities is consistent with the democratisation of the economy that Malaysians deserve.

* The views expressed here are the personal opinion of the columnist.


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