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Threat of legal action against Indigenous Borneans protesting timber company

  • For more than a year, Indigenous communities in Malaysian Borneo have been campaigning against timber conglomerate Samling and its subsidiaries.
  • Indigenous groups and environmental NGOs allege the company failed to obtain free, prior and informed consent of communities affected by its certified-sustainable timber production plantations; the company denies the allegations.
  • In late May, Samling subsidiaries threatened to take legal action against Indigenous communities alleging the company was involved in trespass, damage or destruction of forest.
  • NGOs describe the letters as an attempt to silence Indigenous communities who have spoken out against the company.

A timber company operating in Malaysia’s Sarawak state has threatened to take legal action against Penan and Kenyah Indigenous communities that are campaigning against the company’s certified-sustainable production plantations.

For more than a year, the Indigenous communities have been speaking out against Malaysian timber, plantation and construction conglomerate Samling Group and its subsidiaries. They allege the company has encroached on community land, has withheld key documents about the certification process, and failed to obtain free, prior and informed consent of affected communities during the certification process.

Samling has consistently refuted these allegations, saying it has followed all due and lawful processes in its certification process, and has met all document disclosure requirements.

Sarawak-focused environmental justice NGOs Bruno Manser Fund and the Borneo Project call the recent legal threats an attempt to silence the Indigenous communities who have spoken out.

In a letter dated May 26 and seen by Mongabay, Samling subsidiary Syarikat Samling Timber warned the Long Moh village community in Sarawak’s Miri division that it reserved the right to take legal action against parties alleging the company was involved in trespass, damage or destruction. According to Syarikat Samling, such allegations were “astonishing” given that the community is aware the company has the correct permits to operate in the disputed area, and has already accepted payments for a share of the timber harvested.

The threat of legal action comes after the Penan community complained through news articles that Samling, whose subsidiaries operate a certified-sustainable timber plantation in the area, was crossing into an area that was within their demarcated village.

Earlier this month, Penan and Kenyah communities filed complaints with the Malaysia Timber Certification Council, accusing Samling of failing to properly consult the communities and disregarding the way they use the land.

The Baram Peace Park, which was declared by the Penan in 2009 and has since gained backing from the Forest Department Sarawak and the International Tropical Timber Organization, overlaps with the Samling’s Gerinai FMU. Image courtesy of The Borneo Project.

The Borneo Project and Bruno Manser Fund have partnered with grassroots groups like the Penan community NGO Keruan, whose CEO, Komeok Joe, is visiting communities bordering and within the Samling forest management units or FMUs (government-granted concessions that aim to use funds from timber production in parts of a concession to conserve forest in other parts of the concession) to take reports from the communities. The residents around two of Samling’s certified FMUs were nomadic up until the 1970s, Joe said. Now, the remaining untouched forest is vital to their lives.

“They tell me, ‘Even if they offer us millions in money [for the forest], we won’t accept, we want our land,’” he said of the Penan communities. “They want to fight for their rights.”

Samling Group operates three FMUs in Sarawak, in which 60% and 76% of the granted land is designated for timber production. The concessions are certified as sustainable timber producers by Malaysia’s Timber Certification Council, but critics of the program say that Malaysian Borneo’s decentralized governance and history of corruption make sustainable certification programs illusory.

Representatives of the Penan and Kenyah communities in May filed formal letters of complaint to the MTCC over its decision to certify the 117,941-hectare (291,439-acre) Ravenscourt FMU in Sarawak’s Limbang division and the 148,305-hectare (366,470-acre) Gerenai FMU in Miri division.

In their complaints, the communities, represented by grassroots Indigenous NGOs, allege that full environmental and social impact assessments for the timber projects have not been made publicly available; that Samling failed to properly consult them on the project; and that projects don’t consider how Indigenous communities use the land for their livelihoods.

However, filing an actionable complaint about an FMU is difficult, requiring an in-depth understanding of the certification process and its many players.

Samling Group logging trucks operating in the Upper Baram region of Sarawak in July 2018. Image by Fiona McAlpine/The Borneo Project

When asked about the legal warnings against Indigenous communities, Siti Syaliza Mustapha, senior manager of FMUs for the MTCC, called for open dialogue between parties over legal action whenever possible, adding that good communication is key to the certification process.

“We maintain that the best method for dispute resolution would be through open communication, mutual respect and understanding between the concerned parties,” Mustapha said. “Legal proceedings would be the least preferred option.”

According to Mustapha, the timber certification council she represents does not have the ability to grant or revoke FMUs, nor does it have the final say over whether to certify FMUs. Instead, the MTCC responds only to complaints about the standard-setting process.

Complaints regarding the decision to certify specific FMUs should be sent to the certifying body, Mustapha said. Under Sarawak law, these bodies are hired by the company that holds the concession for an FMU to conduct audits of the areas and eventually certify the planned FMU. For the Ravenscourt and Gerenai FMUs, Samling hired the Selangor-based testing, inspection and certification firm SIRIM QAS International.

Mustapha added that the MTCC encourages people to “make full use of the complaints mechanisms,” and that the council could provide assistance. She said the council in general takes complaints very seriously, without clarifying whether the MTCC was looking into this case after receiving the May complaints.

SIRIM QAS International’s audit of the Gerenai FMU says the concession follows the criteria set for forest management bodies, but the audit — conducted in 2019 and published in 2020 — flagged nine major and minor issues with the management. Among the problems, SIRIM QAS found via conversations at Indigenous community meeting houses that residents were not sufficiently consulted, and that most were not aware of a community relations committee that’s supposed to be established for communication on the FMU.

The Selungo River in the Upper Baram Peace Park. Image courtesy of The Borneo Project.

Thorsten Arendt, head of communication for the Programme for the Endorsement of Forest Certification, an international group for sustainable forest certification boards that counts the MTCC among its members, said the body had met with the MTCC, Indigenous communities and NGOs over Samling’s FMUs to discuss the certification process and their concerns. He noted that complaints against a national member like the MTCC could be appealed to the PEFC if it can’t be resolved at the country level, and could result in suspension or termination of PEFC endorsement if upheld.

While the Penan communities near the Ravenscourt FMU were informed about their new corporate neighbor from the village’s government-appointed leaders, Joe, the Penan community NGO leader, said Penan and Kenyah residents near the Gerenai FMU only found out about it after its certification.

Joe said community representatives came to him with a document informing local people of plans for an agricultural development, but when he looked into the case further, he found that it was actually an approval for the Ravenscourt timber production plantation.

“The logging companies and FMU [holders], they don’t do right by the communities. This is why the situation is worldwide,” he said, referring to the global attention raised by campaigns against the company. “It’s very simple to solve this issue if everyone respects the [Penan community’s] area.”

Peter Kallang, chairman of Sarawak-based environment and land rights NGO SAVE Rivers, says it’s clear the company had limited knowledge of the land when an auditor came to check Samling’s documentation of the Gerenai FMU. He says the auditor asked to see one salt lick — a place where animals go to lick salt and other essential minerals in a natural habitat — in Tanjung Tepalit village, but a Kenyah community member had to explain there are actually three salt licks within the village’s area.

“It means to say the [environment impact] assessment was not done correctly, so for the audit process, it puts a big question mark there,” he said.

Kallang also noted that the audit process is diluted by the fact that Samling pays the auditor, calling it a “conflict of interest” that would push the auditor to approve the company’s claims.

Protestors from Sarawak’s Miri district supporting the “Stop the Chop” campaign, which denounced Malaysia’s timber certification scheme. Image courtesy of The Borneo Project.

Joe, the Keruan CEO, emphasized how important the forest was to the Penan people, of which he is part. The untouched patches of forest in Sarawak are troves for food and medicine for Penan communities, and though many have adopted Christian beliefs, the forest still holds spiritual significance for their communities.

“We treat the forest as ourselves,” he said. “Before we go into the forest, we pray to our elders, so the spirits of the forest will protect us and give us what we want.”

Joe said he was bothered by the company’s claim that Penan people don’t use the forest. He said Samling probably drew this conclusion because the few community consultation meetings it had were held with English-speaking representatives in the city of Miri, but if company officials came to the forested villages, they would see differently.

“If there is a consultation, they need to make it proper,” he said. “Maybe the big boss from Samling or MTCC [should] go to the forest, sit down with the people, talk to the people, explain [their plans] to the people nicely.”

Correction: This articles was updated June 2 to correct the name of a plantation in a statement from Komeok Joe.

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