NCA Forest Deal: 11 organisations appeal to UN to address international legal issues

8 March 2022

By Wartawan Nabalu News

KOTA KINABALU: Eleven organisations today have submitted a letter and report to the United Nations requesting attention to four dimensions of the controversial NCA deal over Sabah’s Forests which run foul of international law, standards and institutions.

The group includes four local, national, regional and global indigenous organisations, PACOS Trust, Jaringan Orang Asal SeMalaysia (JOAS, Indigenous Peoples’ Network of Malaysia), Asia Indigenous Peoples Pact (AIPP), and International Work Group on Indigenous Affairs (IWGIA), as well as local and international civil society and conservation allies, Borneo Futures, Danau Girang Field Centre (DGFC), Land Empowerment Animals People (LEAP), South East Asia Rainforest Research Partnership (SEARRP), WWF Malaysia, and the Center for International Environmental Law (CIEL).

First, the signatories request that UN bodies clarify to the Sabah Public that the bodies have not been engaged in the development of the NCA and do not play a role in its oversight, especially to guarantee that the NCA will deliver on rights or sustainable development commitments”.

They request clarity as the NCA uses language suggesting it is working under UN’s treaties and mechanisms such as that it will comply with Kyoto Protocol (which was replaced by the Paris Agreement), and that the Sustainable Development Goals (SDGs) are an instrument connected with carbon trading.

The NCA, which not once mentions the existence of Indigenous Peoples or Native Customary Rights, instead refers to the role of the United Nations 12 times and its SDGs no less than 18 times.

The signatories are concerned that this language may mislead Sabahans to believe they “can rely on UN’s involvement and standards to ensure its success”.

“Just as the protagonists made false claims that Temasek Holdings, Southern Capital and others were financing this, so they have been claiming the UN is legitimizing it. We are therefore asking the UN the truth”, said Cynthia Ong of LEAP.

Since the NCA will only have financial value if the international community has confidence in its technical quality, the letter also asked that the UN Special Rapporteurs confirm “that carbon credit certification requires standards of transparency, due diligence and governance of the kind referenced in Sabah Government policy and not reflected in the NCA process thus far.”

The second request to the UN asks that the Special Rapporteur on the Rights of Indigenous Peoples convey that Malaysia’s international treaty obligations and domestic laws require recognition of Native Customary Rights, along the lines already referenced in the press by Sabah’s Attorney General and Chief Conservator of Forests.

“We are taking this issue to the United Nations because for some reason those behind the NCA are still claiming that they have successfully become the legal rights holders of all carbon and life in these forests at the secret stroke of a pen, and that there is nothing that the Indigenous Peoples of Sabah can do about it for one hundred years”, said Anne Lasimbang of PACOS Trust.

“Just because you are a politician elected by Indigenous voters in one constituency does not mean that communities across Sabah have given their Free Prior and Informed Consent to giving up their rights to use the forest to meet their wellbeing needs,” added Beverly Joeman of CSO Platform for Reform.

The final request concerns what’s called “a dangerous precedent internationally” of privatising common heritage, said the signatories.

The Forests under the NCA are the very same Totally Protected Areas that Sabahans have set aside and cherished for the conservation of our collective heritage over many years.

“Surely it is of international concern that these could be handed over without shame to an unaccountable foreign company, not least because they would include a UNESCO World Heritage Site (Kinabalu), a World Heritage Site undergoing evaluation (DaMaI), as well as a UNESCO Biosphere Reserve (Crocker Range), and a Ramsar site (Lower Kinabatangan Segama Wetlands)”, said Dr. Robecca Jumin of WWF Malaysia.

Furthermore, the organisations claim, the NCA treats life in the forests of this part of Borneo as a commodity as it tries to grant rights over living things as if the Sabah Biodiversity Enactment (2000) does not exist.

It ignores that Malaysia ratified the Convention on Biological Diversity (1992) and Nagoya Protocol that address issues of community rights and Access and Benefit Sharing, they added.

“We realised that we had to appeal to the United Nations when it became clear that the Zombie NCA was still refusing to die even after the Sabah State Government and Sabah Attorney General’s Press Statement of 9th February.

“That statement made clear that the NCA falls outside Sabah’s intended Climate Policies, is ‘legally impotent’, riddled with ‘unfair and absurd contract terms’ and still has to face rigorous due diligence on ‘the truth and reliability of Hoch Standard’s representations and capability’,” concluded Cynthia Ong.

The NCA’s protagonist, Deputy Chief Minister Datuk Jeffrey Kitingan, was quoted in the press on Feb 19 saying of the NCA that: "It is going good (well). Those who make noise, they do not understand or because they have some personal or private interests, that is why they said something.”