Consultation must happen before the bulldozers arrive, not after, says environmental group

SHAH ALAM - Consultation with Orang Asli communities must take place before plantation decisions are made, not after development plans have already been finalised, an environmental group has urged.

Pertubuhan Pelindung Khazanah Alam Malaysia (Peka) president Rajesh Nagarajan said genuine consultation should allow indigenous communities to influence whether a project proceeds, rather than merely informing them of decisions that have already been made.

"Right now, what gets called 'consultation' is usually a briefing on a decision that's already been made. That's notification, not consent," Rajesh told Sinar Daily.

He said Malaysia committed itself to the principle of Free, Prior and Informed Consent (FPIC) when it endorsed the United Nations Declaration on the Rights of Indigenous Peoples in 2007 and should ensure those commitments are reflected in practice.

According to Rajesh, FPIC requires communities to receive complete information in a language they understand, sufficient time to consider proposals, access to independent legal and technical advice where necessary, and the genuine right to reject or request changes to projects affecting their customary land.

He warned that plantation expansion has often come at a significant cost to Orang Asli communities.

"When forest is cleared, families lose ancestral land, food sources, clean water, medicinal plants, burial grounds and the spiritual ties that hold a community together across generations.

"Once a forest becomes a plantation, hunting, fishing and gathering are no longer possible. Rivers silt up or carry agrochemical runoff, wildlife disappears and families that were once self-sufficient are pushed into poverty and dependency on outside aid," he said.

Rajesh said the issue extends beyond environmental protection and is fundamentally about legal rights.

He noted that the Court of Appeal recognised Orang Asli native title in the landmark Adong bin Kuwau case in 1998 and reaffirmed the principle in Sagong bin Tasi in 2005.

"The law is settled. What is missing is enforcement. Development continues to move forward as though these rights are a negotiable inconvenience rather than a legal obligation," he said.

Rajesh pointed to an ongoing land dispute in Pahang as an example of the gap between legal precedent and implementation, saying affected families are still waiting for a resolution despite intervention from the Prime Minister's Office.

"The fact that a case has to reach the Prime Minister's front door before it gets attention shows how little recourse exists lower down the chain," he said.

He stressed that protecting forests and indigenous communities should not be viewed as being at odds with economic development.

"A country that protects its indigenous communities and its forests is not choosing sentiment over growth. It's choosing the rule of law over a shortcut that always ends up costing more later, in flooding, in water insecurity and in biodiversity nobody can get back once it's gone," he said.

Rajesh also argued that obtaining regulatory approval does not absolve companies of their responsibilities to communities living on the land.

He said developers should carry out continuous human rights and environmental due diligence throughout a project's lifecycle, beginning with genuine environmental and social impact assessments, avoiding areas of high conservation value and respecting FPIC requirements.

Although these requirements are already reflected in the Malaysian Sustainable Palm Oil (MSPO) certification standard, Rajesh said implementation and verification remain the weak link.

"The MSPO criteria clearly state that no new planting may proceed on recognised customary land without Free, Prior and Informed Consent and that any land dispute must be resolved through an FPIC process, not around it," he said.

"What's missing is verification. Certification bodies too rarely check whether consent was genuine before signing off, and there's no real penalty when it isn't."

Rajesh said companies should also establish independent grievance mechanisms and be prepared to redesign, delay or suspend projects if significant environmental or social impacts are identified.

"Profit and respect for people and land aren't competing metrics. A company that can't manage both hasn't actually de-risked its project," he said.