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D-day for the Bakun project

Thayalan Muniandy is the leader of Sahabat Alam Malaysia, the Malay section of Friends of The Earth. He is also one of the four lawyers who lead the case three indigenous people raised against the state in connection with development of the Bakun Dam in the Sarawak state in East Malaysia (see NorWatch newsletter 4/96, 6/96 and 10/96). This summer Supreme Court ruled in support of their claim that the Government used the wrong legal code when reviewing the environmental impact assessment for the project. NorWatch spoke with Mr. Muniandy about the background for the legal case, the consequences of the development and the potential to stop it.
Artikkelen er mer enn to år gammel. Ting kan ha endret seg.
Thayalan Muniandy is the leader of Sahabat Alam Malaysia, the Malay section of Friends of The Earth. He is also one of the four lawyers who lead the case three indigenous people raised against the state in connection with development of the Bakun Dam in the Sarawak state in East Malaysia (see NorWatch newsletter 4/96, 6/96 and 10/96). This summer Supreme Court ruled in support of their claim that the Government used the wrong legal code when reviewing the environmental impact assessment for the project. NorWatch spoke with Mr. Muniandy about the background for the legal case, the consequences of the development and the potential to stop it.

By Harald Eraker and Morten Rønning

- What is the background for the lawsuit you have brought against the Government concerning the Bakun Project?

- The Bakun Project was approved by the authorities in September 1994. It is a governmental project. After approval, the Government invited the private entrepreneur company Ekran Bhd to provide a development proposal - it was never subject to a proper tendering process. The son of the minister of the state of Sarawak was the chair of the Board and one of the largest owners of the company. Of course, he sold out, and was replaced by the environmental minister of Sarawak. According to the Environmental Policy Act, this development requires an Environmental Impact Assessment, EIA, related to all aspects of the project. From the very beginning, the Government was very concerned with the environmental aspect, and said that this should be reflected in the process with regard to the approval of the EIA. The Government encouraged all groups to submit their views in this process. Two other criteria are important: First of all, the laws and the guidelines. This requires the Ministry of Environment to consider the need of all parties before approving an EIA. The other thing is that there is a precedence, at least in West Malaysia, that of the Government appointing an investigating panel in controversial cases. This panel reviews the EIA in advises the department. It has also been usual to collect the views of interested groups, researchers and other experts. When prime minister Mahathir and the environmental minister promised a thorough discussion of the EIA, all groups settled down.

- But this never happened?

- No, what happened was that the Government decided to split the EIA in four parts: the reservoir, the dam, the transmission lines and the underwater cable. This came as a surprise to the NGO's, who claimed that it was difficult to review the consequences of a dam development without looking at the development of the transmission network as well. You can obviously not produce electricity without having a distribution network. Meanwhile, without warning, the Government decided that the environmental impact analyses for the project no longer rested with the national Government, but was the responsibility of the Government of Sarawak. And while the NGO groups discussed the division of the EIA into four parts, the Government declared that the first part, the EIA of the reservoir, was approved. What really came as a surprise, was that this message came from the Government in Kuala Lumpur, and not from Sarawak! A week later, the management of the ministry made clear that they had never approved the first part of the EIA. The approval came from the Government of Sarawak, according to the new law which shifted the responsibility from Kuala Lumpur to Sarawak. So our lawsuit concerned the question of whether the approval of the EIA of the Bakun project were to be the subject to the national or the state of Sarawak's legislation. And while the lawsuit went to trial, the rest of the EIA's were of course approved, all in Sarawak. We claimed that such approvals were invalid.

- And the court ruled in your favour?

- Yes, on the 19th June 1996 the supreme court made clear that we were right: The EIA's had to be approved on a national level. There was a lot of discussion after the ruling. The development company Ekran, together with the Government, immediately appealed, while at the same time requesting a postponement of the decision. Consequently, the court decided that the ruling was not to be valid before the appeal had been subject to a trial. The appeal trial is set for 6th January 1997. This will be the D-day for the Bakun Project. I doubt the trial will last more than 2-3 days.

- So the work with the dam continues?

- The fact is that Ekran has not started the work on the dam itself; this is scheduled to start next year. What is happening now is so-called preparatory work, like building of construction roads and preparations in the area where the distribution tunnel will be.

- But these things are obviously connected?

- Yes, of course. Still, Ekran claims that if they are not allowed to build the dam itself, this work will not represent a threat to the environment. Immediately after the ruling, the contract for sale of electricity to Tenaga Nasional was signed. The same happened with the construction contract with the ABB/CPBO consortium. (In this consortium Kværner is responsible for the delivery of turbines. ed. note.)

- What happens if the appeal goes in your favour?

- To carry out the sentence the authorities will have to redo the entire EIA-process. There will have to be new hearings and the analysis will have to be re-evaluated by a new investigating panel. As a matter of fact, a panel was already appointed. All the members were given 3-4,000 pages which they had to read through, and they even went to the Bakun to see the area first hand. When they returned, they learnt that that they unfortunately no longer had a job, as the processing of the analysis had been transferred to Sarawak.

- This lawsuit was raised by three of the local inhabitants?

- Yes, three people on behalf of the entire population which is affected by the project. Ekran doubted that three people might stop the whole dam, but for us it was important that the tree people acted on behalf of all the 9.500 people that has to move. It does not matter whether one person or thousand people raise a lawsuit, as long as it is the Government which has done wrong.

- As far as we understand, the Bakun Dam plays an important role in Prime Minister Mahathir's Vision 2020, of a fully industrialised Malaysia within less than 25 years. Do you believe the dam can be stopped in the legal system?

- The purpose of the court case is not to stop the project, but rather to ensure proper proceedings. This is because we believe that a process where all interested parties get a chance to present their views and be heard will get the Government to think twice. Concerning the potential to actually stopping the project, we don't believe we have sufficient documentation to prove that the Government is wrong. When the Environmental Impact Assessment was presented, it was too late. It was approved without anybody having the opportunity to express their views. It's no use presenting views after the project has been approved. There were two things that are important for us: First, to convince the Government of the large environmental impacts of the project - that too much is at stake. The second thing was to point to the alternatives. If the need for the electricity exists - what are the alternatives? Is really the Bakun Dam so important for Vision 2020?

- What are the alternatives?

- Before we think of the alternatives, we have to ask ourselves whether the need is there. You don't need to have an alternative to the nuclear bomb, do you? You have to ask, why do we need the nuclear bomb. First of all, our own studies show that the electricity consumption will not increase as much as the Bakun Dam studies indicate. Secondly, if we come to be the industrialised, developed nation by 2020 the Government plans us to be, we must also be able to exploit alternative energy sources, limit the consumption and conserve the energy. Earlier, both the authorities and Tenaga Nasional had extensive plans for energy saving. All these plans were shelved when the Bakun project was launched, because there is an abundance of electricity on the market. At the same time, the authorities believe in an annual economic growth of 7-8% the next 25 years. The question is whether such growth is possible. The authorities says that such growth will require a growth of the electricity consumption of between 10 and 14%. M any have questioned these prognoses, but to this day they have not received an answer. The EIA for the Bakun Dam contain 3-4 thousand pages - the chapter on the electricity demand is 4 pages. Four pages of nothing else than praises of the economic growth and how this will lead to growth of the electricity demand.

- But the Government's vision of Malaysia as a developed industrialised nation by 2020 undoubtedly requires power. What about the alternatives?

- We have a lot of gas in this country. All the oil drilling provides large amounts of gas, enough for the next 70 to 80 years. We already have plenty of independent electricity producers who use gas. Gas fired power stations produce considerably more electricity than the Bakun Dam will do, and at a much lower cost. Some will claim that electricity produced by the use of gas has a high environmental cost, but if you look at clearcutting of 70.000 ha. rain forest, that is not entirely without environmental costs either.

- The Government dropped the Bakun Dam on environmental grounds in the 80's didn't they?

- Yes, and then prime minister Mahathir called it our contribution to the global environment. Today the same man says that then he was not aware of the real consequences, which he is today, because the project does not seem to be so bad after all. (Norwegian prime minister Kåre Willoch visited Malaysia in 1985 followed by a number of Norwegian companies, many of which applied for contracts to the Bakun project. ed. note)

- What about those who will have to move. Are they all indigenous people?

- Yes, all are so-called Orang Ulu, as they are called in Sarawak. The Government uses various figures, ranging from 8 to 10 thousands. These are people who live off hunting and fishing. They will be moved out of the area, and offered work at the palm oil plantations.

- Is this a part of the integration policy?

- Yes, but in Sarawak the Orang Ulu are not a minority, they represent about 75%. 80% of these lives in the inland, the jungle. The policy is to bring them into the modern cash-economy, to bring them into the development. The economy is booming and needs land areas. 30 years ago, nobody wanted to buy land, they bought gold. Today, land is more valuable than diamonds. In Sarawak, which is larger than the entire West Malaysia, only one million people live, while here, we are 17 million. The Government in Sarawak thinks as follows: The current use of the land is not very profitable. How can a person live on 1000 hectares and only catch one fish a day? This makes no economic sense. So what they do is they bring the indigenous people out of the area, put them in houses where they can live, and thereafter establish plantations where the indigenous people previously lived. The land is no longer theirs. Exactly the same process happened in West Malaysia one hundred years ago.

- Are they offered land where they can continue their traditional way of life?

- The Government is not interested in this. They want the indigenous people out of their areas.

- Have Malaysia signed any international conventions or charters which ensure the rights of indigenous people?

- I don't know any international conventions, but the Government obviously follows UN's charters on the issue. The Government has also signed the biodiversity convention from Rio. The 70.000 hectares reservoir area consists of indigenous forest, and contains many protected plants and animals, some of which are threatened with extinction. And not only the reservoir threatens this diversity, but obviously also the roads. Hundreds of kilometres of roads are built through these areas. And the land based transmission network also penetrates the forest, among others through a national park and indigenous people's villages.

- How much forest will be cut in the area?

- The whole reservoir area, 70.000 hectares, will be clear-cut, but this will not happen before the project is finally approved. Clearcutting is a very sensitive issue in this area. Before the Bakun Dam plan existed, the entire area was set aside for clearcutting. The timber companies now use the project as an excuse for clearcutting, but the area would have been cut anyway. These people don't stop; if you have 70.000 hectares, how can anybody control you? There exists no resources to do that. The clearcutting will definitely continue. On the other hand, from an environmental perspective much indicates that a complete clearcutting is good - this will limit the methane emissions from rotting biomass. On the other hand, many claim that when the hills in the reservoir are being cut this will lead to massive erosion, which again will lead to a filling of the reservoir. Clearcutting is also going full speed in the area downside of the dam, in spite of being prohibited.
The Bakun dam in Malaysia
The Bakun dam in the district of Sarawak will be south-east Asia's largest when it is inaugurated in 2000-2001. The 240 meter tall dam on the Belaga watercourse will produce 2,400 Megawatts of electricity, first and foremost for the growing industry of Western Malaysia. The reservoir will flood 690 square kilometres of rainforest, and approximately 95,000 indigenous people are forced to move. These will be given houses and work at palmoil-plantations a few miles away. The development has been subject to heavy criticism from both national and international environmental movements, as the rainforest of Sarawak already is threatened by deforestation. In the reservoir-area proper, there are 105 protected species, some on the brink of extinction. Malayan police has several times stopped the indigenous peoples' protests against the development.

The Swiss/Swedish ABB Group received the main contract for the development in co-operation with the Brazilian CPBO. In this consortium Kværner is responsible for the delivery of turbines.

Norwatch Newsletter 1/97