Anuar Abdul Ghani
KOTA KINABALU: A Sabah lawyer said implementation of the Nature Conservation Agreement (NCA) has been delayed by various parties.
Anuar Abdul Ghani, who is political secretary to Deputy Chief Minister 1 Datuk Seri Dr Jeffrey Kitingan, said that the parties contributing to the delay of the NCA included opposition parties who had actually agreed to a far less favorable deal, by NGOs who should be questioned for the own FPIC (Free, Prior and Informed Consent), by civil servants who are testing the limits of powers between the executive and the civil services.
“In the meantime, we remain the poorest, the sickest, the least educated, with the highest rate of unemployment, and most susceptible climate change,” said Anuar when delivering a paper at a session on: –
“The Asia Foundation: Towards a Community-based Green Economy in Sabah,” at the three-day Borneo Rainforest Law Convention organised by the Commonwealth Lawyers Association and Sabah Law Society that began here Monday.
“We are not seeing the wood for the trees,” he reminded.
At the same time, Anuar said that a better alternative has not been produced nor presented by the detractors and opponents of the NCA.
“With malice to none and with all due respect but with sincere concern for the well-being of the people of Sabah, the NCA is a big step towards a transformative journey towards sustainable development which lays the foundation for long-term prosperity and well-being of all Sabahans,” he said.
He added that it was imperative that stakeholders from the government, private sector, civil society, and communities collaborate together and effectively to implement the NCA.
He also urged everyone to set aside their differences and rally around a common vision which was to turn Sabah from a state of struggle to one of triumph, from poverty to prosperity, and from division to unity.
“I call upon each and everyone of you to join me in this endeavor, not as adversaries but as allies, united in our determination to uplift Sabah and all who call it home. Together, we can turn the tide and chart a new course for Sabah — a course defined not by our challenges, but by our collective resolve to overcome them,” he said.
Anuar explained that the NCA was signed on 28 October 2021 by the Chief Conservator of Forest, on behalf of the Sabah Government and Stan Golokin, on behalf of Hoch Standard Pte Ltd (HS).
The signing ceremony was witnessed by Chief Minister Datuk Seri Panglima Hajiji Noor and the then Deputy Chief Minister II, Jeffrey, and in the presence of the Sabah State Attorney General.
He also explained that the NCA was not a sale, a lease or a charge, and does not allow HS to log or mine the designated areas of up to 2,000,000 acres.
“The NCA was purely to measure and monetise, among others, Nature Capital and the carbon sequestrated in the Sabah forests, for 100 years,” he said.
And why 100 years?
“Your house tenure is 99 years, FMUs are for 100 years, some CL titles are for 999 years, and Native Titles are in perpetuity. Conservation, ideally, should be forever,” he said.
However, almost immediately after signing, the NCA came under attack from various parties, he said, which included the opposition parties, foreign media, the Attorney General of Sabah, CSOs representing 13 NGOs as well as non-implementation by the Sabah Forest Department (SFD).
“Delay and non-implementation is self-induced on the part of the SFD,” he alleged.
Anuar said that on 9 February 2022, the Attorney General issued a statement, calling the NCA as a “legally impotent” agreement and was titled “The state government’s policy on Carbon Trading”.
He reminded that firstly, there was no State policy on carbon.
“In fact, there is no Sabah policy on climate change. There is as yet no national policy on carbon. Our national climate change policy which was introduced in 2009 needs an urgent update. As such, the title is a misnomer, inaccurate and misleading,” he said.
“Secondly, as a matter of course, before issuance of the statement, the AG from what we followed, did not refer to the Chief Minister, nor to the State Cabinet which approved the NCA. The statement was sent to 21 newspapers and media stations. So this statement was unauthorised. In legal parlance, the AG went on a frolic of her own,” he added.
He added that the statement by the highest legal officer in the state sent shockwaves and greatly undermined the legal status of the NCA.
“Fund investment entities which included some of the world’s largest backed off. The SG First Mover Advantage was quickly whittled down by this rather strange statement,” he said.
Anuar also shared how NCA could benefit the State.
“Carbon belongs to the State and the people. So, it should benefit all the people,” he said.
He added that a proposal that monies from carbon raised either through sales in the VCM (Voluntary Carbon Market) through the carbon exchange should be put in a trust account under the Financial Procedure Act 1957, Section 9 (2)(a)(b)(c) of the FPA to address and tackle the 17 SDGs starting with SDG 1 – Eradication of poverty.
“Otherwise, if it goes to the consolidated fund, this money will be utilised by all the ministries in the Cabinet. It will be like a ‘Pork Barrel’,” he said.
He also said that the revenues from the carbon credit sales can be the basis and contribution for the formation of the Sabah Sovereign Wealth Fund.
In his presentation, Anuar also said that carbon should stay as a state matter.
“One area that we like to refer to is the Protection of Sabah’s Sovereignty on Carbon. Since land and forest is a State matter (Article 74 and 77, Federal Constitution, List II – State List item 2 & 3(b)) and 3 and Carbon is a forest produce (Section 2, Sabah Forest Enactment 1968), as stated in the Forest Enactment, it should stay as a State matter,” he said.
He added that under Article Grounds 76, notwithstanding that the matter is within the State list, the Federal Government can make laws pertaining thereto on certain grounds.
“Dr Jeffrey Kitingan is very concerned and aware of this and when he represented Sabah at the National Climate Change meeting chaired by Prime Minister Datuk Seri Anwar Ibrahim. He, together with the Sarawak counterpart, insisted that Carbon remained a State matter for all States and that the Federal Government will only oversee the NDC (National Determinant Contribution) of the country. The FG will have supervisory, monitoring and a coordinating role,” said Anuar.
He reminded that the NCA is the one singular way in which Sabah can unlock her lazy assets, unshackle herself from poverty, and conserve her forest for future generations and beyond.
