CERTIFYING THE OIL PALM PLANTATION BUSINESS and protecting indigenous peoples rights
Published: 06 January 2005
and protecting indigenous peoples rights
Summary of invited presentation at the Public Forum on Sustainable Palm Oil
And because the indigenous peoples of Malaysia live in areas that are perceived to be vacant but rich in natural resources, their traditional territories -- once regarded as hostile, unproductive hinterlands by the mainstream community -- are today much sought after for the profit they can bring to others.
The threats to Orang Asal lands today come from a variety of sources: development projects (such as dams, highways, golf courses, universities and housing projects) as well as from logging and agricultural expansion schemes. Invariably it is frequently businesses that encroach on, and often appropriate, indigenous traditional territories on a large scale. The Sarawak government, for example, recently revealed that as of 1st December 2004, 38 forest plantation licences covering a total of 2.4 million hectares had been issued. And most of the areas are lands claimed by the native peoples there.
Repeatedly, these encroachments and appropriations often result in conflicts between the indigenous peoples and the outsiders. Some of these conflicts have led to violent deaths on both sides, especially in Sarawak.
The source of the conflict stems from the non-recognition of the native customary rights or the inherent land rights of the indigenous peoples. State governments unfortunately tend to side with the oil palm plantation businesses in this regard. This is despite the fact that the courts of this land have ruled that the Orang Asal do have rights to their lands although such lands may not have been registered or titled. The court decisions in question include those of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor , Nor anak Nyawai and Ors v Borneo Pulp Plantation Sdn. Bhd , and Sagong Tasi and Ors v Kerajaan Negeri Selangor and Ors [2002, 2005].
Furthermore, conversion of forests into oil palm plantations leads to the complete loss of some species of mammals, reptiles and birds, while encouraging the proliferation of others to the extent that they become pests. Plantations also infringe on the habitat of many endangered species such as the orang-utan, elephant, tiger and proboscis monkey and cause them to be killed or relocated.
Herbicide and pesticide run-offs as well as effluents from oil palm mills pollute water courses that are important for humans, agriculture as well as to aquatic life.
Invariably, as a result of these effects of forest-clearing and oil palm planting, it is usually the indigenous peoples who bear the consequences of such environmental degradation.
Clearly also, when oil palm plantation expansion impinges of the traditional territories of indigenous peoples, ignoring their rights to the land, ruining their livelihoods, or giving them a less-than-equitable deal in the enterprise, the palm oil that results from that activity cannot be deemed as "sustainable".
An oil palm plantation business is therefore characterised by a monoculture crop, which is planted on a large acreage (invariably obtained through deforestation or appropriation of indigenous lands), and, being a business, where the pursuit of profit is foremost in its objectives.
Smallholder farms, on the other hand, are more socially responsive and environ-mentally responsible. They benefit the smallholders directly and more justly. Palm oil from smallholdings therefore has the better likelihood of being "sustainable". Only the mechanics of a sustainable palm oil certification scheme such as that of the RSPO makes it difficult for the oil from the smallholdings to be certified as "sustainable".
However, Criterion 1.1 brings up the "legal" argument, as in the condition that there is "compliance with all applicable local, national and ratified international laws and regulations". The fear is that those wanting to, can hide behind national laws that do not respect or recognise the rights of indigenous peoples, even though the courts may be inclined to do so. Furthermore, Malaysia has not ratified any of the relevant international conventions (such as ILO 169 and the UN Convention on the Elimination of All Forms of Racial Discrimination), which have implications for enforcing indigenous peoples' rights in Malaysia and also in the context of the RSPO Principles & Criteria. This non-action on the part of the Malaysian government therefore makes several of the principles and criteria unenforceable, except by way of consensual willingness on the part of the producer.
Criteria 7.6, 7.7. and 7.8 (on the responsible development of new plantations) are positive inclusions. However, they relate only to future or planned plantations. They provide no avenue for correcting past wrongs or for ensuring that these wrongs are not rewarded with a certificate promoting the violator as a "sustainable" producer.
Criterion 8.1 (commitment to transparency) actually provides no commitment to transparency and allows the non-transparent producer to hide behind this criterion for the flimsiest of excuses.
Unfortunately it allows for multiple interpretations of certain phrases and can allow an otherwise credible and positive criterion to be diluted or misapplied. There is therefore a need for an unambiguous statement of intent that clearly sets out the objective of the palm oil certification scheme. Among the elements of this preamble should be statements like:The object of this scheme is to ensure that the production of sustainable
palm oil has not created social injustice, caused environmental
degradation or initiated conflict.