Reclamation – a travesty of environmental justice for vulnerable coastal communities

Penang Tolak Tambak (Penang Rejects Reclamation) and other civil society groups released the following media statement upon handing over the memorandum (reproduced further below) to the National Human Rights Commission of Malaysia (Suhakam) on 16 January 2020.

Environmental justice is about promoting a “fair” distribution of environmental benefits and burdens and ensuring that vulnerable low-income communities do not bear the brunt of pollution, environmental degradation, and climate change.

Penang Tolak Tambak is an alliance between the Persatuan Nelayan Pulau Pinang and Penang Forum formed in mid-2019 to stop the destructive large-scale coastal reclamation projects in Penang, particularly the Penang South Reclamation project.

This memorandum focuses on the Penang South Reclamation project. The Penang government’s project to reclaim three islands measuring 4,500 acres will produce major negative outcomes for environmental justice and human rights. The creation of three supposedly “smart and green” artificial islands which aims for affluent buyers and investors will be undetaken at the expense of vulnerable groups and future generations.

This memorandum raises five issues of environmental justice affecting traditional/inshore/artisanal fishers and fishing communities which should be raised to the Penang state government as the project proponent and approver of the project.

A. The Penang South Reclamation project will inflict “permanent damage” on Penang’s richest fishery and sensitive coastal ecosystem, impacting the livelihoods of 4,909 fisherfolk and 511 marine aquaculture operations. Sand mining for the project will affect an additional 6,000 fisherfolk and aquaculture operations in northern Perak.

B. Have the Penang government and the Department of Environment failed to observe the “precautionary principle” in climate mitigation and environmental protection?

C. Are the state authorities ignoring, overruling and undermining the traditional fisherfolk’s rights of tenure and access to the fisheries commons, by planning a project which destroys and pollutes the marine ecosystem?

D. Are the state authorities violating the principle of free, prior and informed consent by deciding to proceed with the project despite the explicit objections of local fishing communities?

E. Did the authorities attempt to obstruct the fisherfolk’s protest and memorandum handover on Hari Solidariti Nelayan (Fisherfolk Solidarity Day), 4 November 2019, by trying to deny them the use of a public space, imposing restrictive conditions, erecting a police barricade and – despite permission given in the police letter – denying entry to the state assembly venue?

Memorandum

The current trend of coastal reclamation projects as a development strategy in Malaysia is creating thousands of “victims of development” among vulnerable low-income coastal communities. Penang South Reclamation is an important test case for the defence of traditional fisherfolk’s human rights against the “sea grab” of the fisheries commons by state and business interests.

The deliberate erosion of fisheries rights for Penang and Malaysia’s fisherfolk and the implications for our national food security and cost of living poses a direct and monumental threat to the wellbeing of the bottom 40% of the population.

Two petitions to stop the Penang South Reclamation project have been signed by more than 250,000 supporters (see the change.org and rainforest rescue petitions). The numbers clearly demonstrate the groundswell of local, national and international support for these fisherfolk and for the protection of our marine ecosystems.

We have appealed to the prime minister of Malaysia and the chief minister of Penang to observe the “precautionary principle” for environmental protection and to stop/cancel the proposed project.

We call upon Suhakam to advise the Penang state government, developers, government officers and fisheries authorities to respect the fishing communities’ right to free, prior and informed consent and to conduct any consultations fairly and transparently with all legitimate representatives on board and observing mutually agreed due process.

Any attempt to undermine the Persatuan Nelayan Pulau Pinang’s (Penang Fisherfolk’s Assocation) collective position by any party – through eg one-to-one negotiations and the offering of incentives or the exertion of undue pressure through mala fide acts such as intimidation, coercion or abuse of power in the removal of normal subsidies or use rights, obstruction of access to fisheries, arbitrary demotion or disqualification of any fisherfolk, undermining the right to freedom of association or de-platforming of the fisherfolk’s association in any manner – should be investigated.

We appeal to Suhakam to ensure that local fishing communities are not disenfranchised of their rights to the fisheries commons which has been their source of livelihood for generations. To protect the human rights of the fisherfolk, we call upon Suhakam to conduct a full investigation into the plight of the Penang and Perak fisherfolk threatened by the proposed Penang South Reclamation project.

We also call upon political representatives, government, civil society and the public at large to recognise coastal reclamation as an environmental justice issue affecting tens of thousands of fisherfolk and their fishing communities and to support the fisherfolk’s rights by calling for the national proscription or ban on coastal reclamation proposals for urban development, as advised in the National Physical Plan 2020.

(See appendix below)

Endorsers:

1. Agora Society
2. Aliran
3. Angkatan Belia Islam Malaysia (Abim)
4. Artivist Network
5. Beyond Borders Malaysia
6. Center to Combat Corruption & Cronyism (C4)
7. Consumers Association of Penang (CAP)
8. Desa Ria Residents Association, Penang
9. Gerakan Pembebasan Akademik (GPA)
10. Greenpeace Malaysia
11. GreenSmiths
12. Klima Action Malaysia (KAMY)
13. Klimate Action Utara Malaysia (Kaum)
14. Majlis Perundingan Pertubuhan Islam Malaysia
15. Malaysia Muda
16. Malaysians Against Death Penalty and Torture (Madpet)
17. Natural Farming Association
18. Penang Hills Watch
19. Persatuan Aktivis Sahabat Alam (Kuasa)
20. Persatuan Kebangsaan Pelajar Islam Malaysia (PKPIM)
21. Persatuan Kesedaran Komuniti Selangor (Empower)
22. Persatuan Penduduk Petaling Jaya
23. Persatuan Persaudaraan Muslimah Malaysia
24. Persatuan Promosi Hak Asasi Manusia (Proham)
25. Persatuan Sahabat Wanita Selangor (PSWS)
26. Pertubuhan Alam Sekitar Sejahtera Malaysia (Grass Malaysia)
27. Pertubuhan Kebajikan Nasiatul Aisyiyah/Aisyah Home
28. Pertubuhan Pelindung Khazanah Alam Malaysia (Peka Malaysia)
29. Pertubuhan Solidariti Hijau Kuantan (PSHK)
30. Pertubuhan Warisan Tanah & Teroka Bandar Pulau Pinang (NGO Teroka)
31. Sahabat Alam Malaysia (SAM)
32. Save Malaysia Stop Lynas (SMSL)
33. Suara Rakyat Malaysia (Suaram)
34. Tanjung Bungah Residents Association (TBRA)
35. Teras Pengupayaan Melayu
36. University of Malaya Association New Youth (Umany)
37. Workers Hub For Change (WH4C)

Appendix

A. Potential socio-environmental adverse impacts

The long list of negative environmental and social impacts of the Penang South Reclamation project 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 project dated 25 June 2019:

…the development of the project will cause permanent and residual impact on mudflat ecosystems, fishing grounds, turtle landing areas and some coral reefs in Pulau Rimau, which is an important source of fisheries resources. This permanent destruction will have a significant negative impact on the country’s fisheries resources, fisheries and food security. (translated)

Furthermore, the project will generate 3.2 million tonnes of carbon emissions. Sand mining will destroy 820 sq km 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 the fisherfolk’s livelihood is acknowledged by the agriculture minister, speaking in Parliament on 16 July 2019:

Penang South Reclamation will affect 4,909 fisherfolk on the island of which 1,422 comprise the traditional fisherfolk of Zone A. It is estimated that 51,184 metric tonnes worth RM595m a year in marine fishery landings in Penang will be affected by this permanent destruction. The project will also affect 511 aquaculture operations with a production of 45,742 metric tonnes worth RM1.67bn a year. (translated)

Sand mining will also affect an additional 6,000 fisherfolk in northern Perak.

3. Small-scale fisheries will be devastated. In times of climate crisis and declining global fisheries resources, the UN Food and Agriculture Organization (FAO) views sustainable small-scale fisheries as key to food security and human rights. The impacts of marine pollution on inshore-fisherfolk’s catch and nearby fish farms will trigger price hikes in and beyond Penang, threatening the supply of seafood to families in the bottom 40% and jeopardising national food security.

4. The National Physical Plan (2010) has clear policy statements forbidding coastal land reclamation (except for 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 socioeconomic inclusivity and the UNDP’s sustainable gevelopment goals, especially SDG1 (no poverty), SDG8 (decent jobs and economic growth), SDG10 (reduced inequalities), SDG11 (sustainable cities and communities), SDG13 (climate action) and SDG 14 (life below water).

B. Not applying precautionary principle in protecting 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. Phase two of the Seri Tanjung Pinang project (STP2, 760 acres) and the Gurney Wharf project (131 acres), undertaken in the sea north of Penang Island, is showing signs of time and cost overruns, marine pollution and damage to fisheries. At fisherfolk’s complaints sessions undertaken in Tanjung Tokong and Bagan Ajam, the majority of them 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 the 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 fisherfolk “leading better lives”, mitigating negative impacts and rehabilitating the fisheries, such an optimistic outlook has not been borne out by the experience of phase two of the Seri Tanjung Pinang project.

3. The Penang South Reclamation project is expected to generate 3.2 million tonnes of carbon annually. If reported accurately, this will compromise Malaysia’s pledge to fulfil 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. The issue of coastal reclamation must be more widely understood so that the culprits harming the ecosystem can be held accountable.

C. Ignoring traditional fisherfolk’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. The creation of islands 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 FAO explains the concept of 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.

1. The fisherfolk will lose the richest fishery in Penang waters. For generations, the traditional fisherfolk have been fishing in the sheltered, shallow seabed of the southern area, and fishing communities have flourished along the southern coast of Penang Island. Yet their rights to the fisheries commons are not being recognised and respected.

2. The fisherfolk will lose access to fisheries. The channels between the three artificial islands are created ostensibly to allow fisherfolk future access to the sea, but this is a moot point as the marine ecosystem 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 overland access to beaches, amenities, road space, etc.

3. Rich developers will gain a reclamation site but at the expense of the poor fisherfolk. The appropriation of sea and the seabed of the southern area 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. The state government is “trading off” the sustainable fisheries, fisheries commons, fisherfolk’s livelihood and food security for speculative economic gains.

4. The project will put unprecedented demographic, environmental and housing pressures on local communities. Many residents, including fisherfolk’s families who are not property-owners, will be forced out by land price hikes and evictions. The breakdown of social cohesiveness will be sped up, leading to a loss of culture, heritage and the way of life.

5. The current development in south of Penang Island is already stressing the community in the southern area. Currently, three hostels for 30,000 foreign workers are being built/proposed in the south; in some areas, residents will be overwhelmed five to one by foreign workers. The demographic changes caused by the projected 400,000 population on the three artificial islands will further destabilise and displace the existing population of the fishing villages.

D. Not observing the 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 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 free, prior and informed consent – 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 Penang Fisherfolk’s Association formed under the Fishermen’s Associations Act 1971 (Act 44) are the legitimate representatives of thousands of fisherfolk and other members engaged in the fisheries industry.

1. In a previous project (Seri Tanjung Pinang phase two), the fisheries authorities negotiated with the fisherfolk on behalf of the developers, bypassing the Penang Fisherfolk’s Association and pressuring the fisherfolk 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 fisherfolk’s livelihoods were implicated in influencing the fisherfolk 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 Penang South Reclamation project, the fisheries authorities seem to be playing the same role. The Fisheries Development Authority of Malaysia (LKIM) should be called out and held to account.

2. The environment impact assessment for the Penang South Reclamation project was approved by the Department of Environment even though the social survey component showed that only 17 fisherfolk agreed to the reclamation and 94.5% of them rejected it. In a poll of 635 respondents in the impact area made in 2016 (breakdown: 300 from the general public, 200 from 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 fisherfolk 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 project without the free, prior, informed consent of the main stakeholders. The Department of Environment also did not seek the fisherfolk’s views before granting the envionmental impact assessment report a hasty approval on 25 June 2019. The fisherfolk’s association has repeatedly voiced their objections to the project, starting with a demonstration of 1,500 fisherfolk in December 2015, and has written memorandums 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 fishermen’s protest and handover of memorandum

On 4 November 2019, the Penang Fisherfolk’s Association organised a protest called “Hari Solidariti Nelayan” (Fisherfolk’s Solidarity Day) in Padang Kota, Penang, participated by about 1,000 fisherfolk and members of civil society. The intention was to hand over a memorandum to the chief minister who was presiding over the Penang State Assembly in a session that Monday.

Although the protesters 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 fisherfolk’s association wrote to the Penang Island City Council on 13 Sept 2019 to use the public space at Padang Kota, The council only replied on 25 October, ie 10 days before the event, to say the request could not be considered because the field was undergoing repairs and to ask them to postpone or find another venue. In fact, only small areas of the field were being repaired and right until 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 1 November 2019, stipulating the conditions to be observed during the peaceful assembly on 4 November. Among the conditions: no procession and only five 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 five 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 protestoers and only sent the state information officer to receive the memorandum.

5. The Penang Fisherfolk’s Association and Penang Forum are very disappointed that the Penang government refused to engage with the representatives of the protesters on the Fisherfolk’s Solidarity Day, 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.

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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