As it stands, there are a number of regulatory frameworks that exist and can be used to penalise errant companies and individuals that cause haze
by ALIFAH ZAINUDDIN & SHAHEERA AZNAM SHAH
FOR much of the year, white-collar workers who occupy premium suites in Kuala Lumpur could have an unobstructed view as far as Genting Highlands from their high-rise office buildings.
In recent weeks, however, even the Petronas Twin Towers were barely visible as smoky haze shrouded the entire city.
The choking smog, attributed mainly to fires burning in Indonesia’s Sumatra and Borneo islands, has become an annual affair in South- East Asia with little resolve to address it.
It is the same narrative each year. The fire starts, the smoke spreads and visibility across many key cities in the region drop, forcing thousands of schools to close and flights to be cancelled.
The Environment Department would impose a blanket ban on open fires and increase efforts to control local sources of air pollution.
Governments are then pushed to threaten legal action against culprits behind the illegal fires.
Still, with no consensus on the origins of the yearly blaze, it is also another “norm” that charges made against perpetrators are dropped, despite the availability of satellite imagery and the existence of various agricultural and environmental laws to prosecute.
With the lack of enforcement, there is a lingering doubt that Malaysia’s plan to pass a new legislation could bring an end to the haze or at least limit slash-and-burn practices for agriculture.
Regulations at Hand
As it stands, there are a number of regulatory frameworks that exist and can be used to penalise errant companies and individuals that cause haze.
Singapore, for instance, has enacted the Transboundary Haze Pollution Act 2014 — a law which makes it a criminal offence to cause severe air pollution in the island republic.
The Act allows hefty fines of up to S$100,000 (RM304,099) for every day of the haze pollution against companies found guilty. The amount can go up to a total maximum aggregate of S$2 million.
It also establishes a presumption that a parent company, which participates in the management of the subsidiary company causing pollution, is also engaging in such unlawful conduct.
In Indonesia, laws banning the burning of forests are aplenty, yet enforcement has been limited with overlapping land rights and murmurs of widespread corruption.
Its overlapping landownership regulations have made it impossible to amass facts on the sources of pollution needed for a successful prosecution.
Datuk M Nagarajan, former chairman of the Malaysian Palm Oil Certification Council, explained: “The Perkebunan Inti Rakyat and the Plasma Transmigration Programmes demand that smallholders be given five acres (2.02ha) of land to develop for every 1,000ha of land owned by large agribusinesses.”
“It is inaccurate to attribute the fires to local planters with operations in Indonesia as the complex distribution of the land concession makes it difficult to identify the source of the fire,” he said, adding that farmers often resort to the cheapest way to clear land by setting it alight.
Malaysia also has a zero-burning policy under the Environment Quality Act 1974 which is punishable with a fine of not exceeding RM500,000 or imprisonment for a term not exceeding five years.
The rule, however, only applies to acts committed locally and not overseas, hence the void.
At the regional level, the environmental crisis in the late 1990s resulted in the establishment of the Asean Agreement on Transboundary Haze Pollution 2002.
The treaty, however, is vague and lacks enforcement mechanisms and instruments for dispute-resolution.
Malaysian Firms in Indonesia
Indonesia’s Environment Minister Siti Nurbaya Bakar last week claimed that some of the fires had been spotted on palm oil plantations operated by four Malaysian companies’ subsidiaries — Kuala Lumpur Kepong Bhd (KLK), Sime Darby Plantation Bhd, IOI Corp Bhd and TDM Bhd.
The minister later announced that the ministry was investigating 370 plantation companies suspected of intentionally setting fires for new planting, including 103 in the Riau province.
She said authorities had sealed off land owned by at least 52 companies in the past week for investigation.
KLK and TDM have since confirmed that land plots belonging to their Indonesian subsidiaries had been sealed off.
IOI Corp and Sime Darby Plantation, however, denied that their estates had been shut out by local authorities as small fires on their lands had been quickly contained.
Data compiled by The Malaysian Reserve found that over a third of the 42 listed plantation companies on Bursa Malaysia have oil palm estates in Indonesia, including eight of the top 10 firms.
The cumulative land size is at an estimated 963,498ha located mainly in Kalimantan, Sulawesi, Sumatra and Jambi.
It would be interesting to see how the law, if it comes into effect, will be implemented given the influence of plantation companies over the country’s political and economic landscape.
Malaysia and Indonesia are the world’s top producers of palm oil, accounting for about 85% of global output.
Palm oil is the largest agricultural contributor to Malaysia’s GDP with a total of RM44.8 billion or 3.8% of GDP contribution in 2017.
Sime Darby Plantation, the country’s largest plantation company by market capitalisation, is also the world’s largest oil palm plantation with a total landbank of 630,000ha — accounting for 4% of global crude palm oil production in 2017.
Power to the People
Over the weekend, hundreds of people gathered at Malaysia’s capital city for a protest rally to demand government action on climate change.
This included the creation of a Haze and Transboundary Pollution Act and the formation of a special committee to investigate companies linked to the haze.
Subang MP Wong Chen, who was at the rally, said he would like to see corporate giants and private companies taking greater responsibility for their actions.
“I will bring it up in Parliament and suggest the use of satellite imagery to reveal areas blanketed with haze. We will then ask the corporations to defend themselves. They have to disprove their involvement,” the lawmaker said.
Public support is evident for the introduction of the new Act.
While there may be challenges to implement the new law, the Act will definitely fill up a legal void that will make Malaysia’s plantation giants think twice before opting for traditional slashand-burn practices. With satellite technology making data accessible to the public, there is no where left to hide.