Part 2: Legislation and categorisation
Permanent forest reserves. Permanent reserved forests. Permanent forest estates. Forest reserves. Protected forests. Water catchment forests. Virgin jungle reserves. National parks. State parks. Nature reserves. Wildlife reserves. Wildlife sanctuaries. Production forest. Protection forest. Totally protected forests. Totally protected areas. Conservation forests. Conservation areas. Many Malaysians interested in forest protection must have encountered all these terms before. But what do each and every one of them mean, really? If you have been confused by them, you have come to the right place. This is the second part of a two-part article discussing basic information on how forests and conservation areas are legally and administratively classed by both federal and state authorities in Malaysia, based on the laws that govern them. While the first part has provided an introduction to the structure of forestry governance in Malaysia, this second part will delve further into the legislative framework on forests and conservation areas in the country.
In the first part of the article, apart from the discussion on how data on our forests and conservation areas are classed at the federal level, we have also introduced to you the information on how our Federal Constitution has organised the governance of land, forests and conservation areas in the country, including the jurisdiction of the federal and state governments.
In this second part of the article, we will now take a look at the array of laws on forests and conservation areas in the country, as enforced by the three members of the Federation of Malaysia, and the implications that they may have on the management of data on forestry and conservation areas in the country. Here, you will meet the different legal classes of forests and conservation areas, as how they have been originally named, in law.
Forestry and conservation legislation in Peninsular Malaysia
In Peninsular Malaysia, the main forestry legislation enforced by its 11 states are in fact individual state enactments that have been based on the National Forestry Act 1984. The National Forestry Act 1984 and their state enactments are regulated by the Department of Forestry of Peninsular Malaysia (JPSM) and its state offices, respectively.
This federal law provides for the establishment of the Permanent Reserved Forest (PRF). In the original federal law, the PRF is further subcategorised into 11 functional classes. Meanwhile, the National Forestry Policy spells out four types of functional classes, namely, production forest, protection forest, amenity forest and research and education forest. Each of the functional class in law is placed under one of these four categories. Table 1 describes the features of each functional type and class of the PRF.
The first functional class of the PRF under the National Forestry Act 1984 is known as the ‘Timber Production Forest under Sustained Yield’. This class is obviously a production forest where logging is allowed to take place under a licence. This is the only functional class of the PRF which qualifies as a production forest.
The remaining functional classes have been designated to serve various other functions that are protective in nature, where logging and other destructive activities are not permitted: Soil Protection Forest, Soil Reclamation Forest, Flood Control Forest, Water Catchment Forest, Forest Sanctuary for Wildlife, Virgin Jungle Reserved Forest, Amenity Forest, Education Forest, Research Forest and Forest for Federal Purposes.
Nevertheless, once the state has gazetted a PRF, it will need to carry out a second gazetting process if it wishes to reserve any area within it as a functional class other than the first. As long as this is not done, areas within the PRF, by default, will be categorised as the first functional class and can therefore be legally logged. This is why the only functional class reserved for production purposes under the National Forestry Act 1984 is also the largest in size.
Despite the National Forestry Policy categorising the PRF into four types of functional classes, for the purpose of statistical information tabulation at least, JPSM also groups all of the functional classes except for the first as ‘protection forest’. Essentially, these are calculated simply as conservation or totally protected forests. However, the same protected area of the PRF may also be gazetted as different protection functional classes at the same time. As a result, this has created statistical information overlaps that must be managed properly.
Meanwhile, Peninsular Malaysia also enforces two other federal conservation legislation under the authority of the Department of Wildlife Protection and National Parks (PERHILITAN). While the National Parks Act 1980 authorises the establishment and regulation of National Parks, the Wildlife Conservation Act 2010 authorises the establishment and regulation of two classes of conservation areas i.e. Wildlife Reserves and Wildlife Sanctuaries. The latter also regulates the protection of the different classes of endangered plant and animal species.
These forestry and conservation laws are federal laws as they have been passed by the parliament. See table 2. However, as part one of this article has explained, due to our constitutional provisions, they are not applicable to Sabah and Sarawak.
However, it does get even more complicated than this. Peninsular Malaysian states, like Sabah and Sarawak, may also regulate their own conservation efforts, outside of the network of the two abovementioned federal conservation laws. This is due to the fact that unlike the jurisdiction on land, forests and turtles, for which states have exclusive authority over, the Federal Constitution has granted our federal and state governments the shared jurisdiction over national parks and wildlife other than turtles. Consequently, there are three legal approaches that can be undertaken by the Peninsular Malaysian states in order to exercise this shared power on conservation matters.
First, like Sabah and Sarawak, Peninsular states may legislate their own conservation laws to establish and regulate their own conservation efforts, as illustrated in table 3 below. Some of these laws in fact, had been enacted during the colonial era, and have continued to be in force today. Others were enacted after the formation of Malaysia.
Today, the regulators of such conservation efforts in Peninsular Malaysia vary; the management of the older conservation parks as well as turtle and terrapin conservation efforts have largely been handed over to PERHILITAN, while the younger state conservation parks are regulated by special state authorities that have been established by the newer laws.
The oldest conservation park in the country that criss-crosses the borders of three east coast states, the Taman Negara National Park, is actually made up of three state parks that were established through three separate but similarly worded colonial state enactments of Kelantan, Pahang and Terengganu. These enactments are still in force today, preventing the National Parks Act 1980 from having any authority over the park. However, its management has been handed over to PERHILITAN.
Other younger conservation parks meanwhile, such as the Royal Belum State Park in Perak and the network of Johor National Parks, have been established through newer state legislation i.e. the Perak State Parks Corporation Enactment 2001 and National Parks (Johor) Corporation Enactment 1989 and are regulated by state authorities that have been established by them i.e. the Perak State Park Corporation and the Johor National Parks Corporation, respectively.
Second, Peninsular states, with the knowledge of the National Forestry Council, may also amend their respective forestry enactments to allow for the establishment and regulation of a new functional class within the Permanent Reserved Forest, known as State Parks. This approach has been undertaken by Kelantan, Perlis, Pulau Pinang, Selangor and Terengganu, with Kedah reportedly in the process of doing the same. These State Parks will be regulated by their respective state forestry departments. The Gunung Stong State Park in Kelantan, the Perlis State Park and the Selangor State Park are examples of parks under this category.
Third, there are also Peninsular states that have gazetted their own conservation areas through the main land legislation i.e. the National Land Code 1965, which allows for state governments to create government reserves through the gazetting of land to fulfil specific public purposes. Such parks today are also mostly being managed by PERHILITAN, as this process clearly does not provide for the establishment of special structures to regulate conservation areas.
As a result, of all the conservation parks in Peninsular Malaysia, only the Penang National Park has been established and is regulated under the National Parks Act 1980. This federal law does not have the authority to repeal state conservation laws that have come into force before its enactment, whether this took place during the colonial era or after independence; prevent their future enactment by the states; or prohibit the states from utilising their forestry enactments in order to establish and regulate another network of conservation areas under the authority of JPSM.
On the other hand, the Wildlife Conservation Act 2010 retains its authority on the network of colonial and post-independence wildlife conservation areas in existence in Peninsular Malaysia today, except those concerning turtles and terrapin and those established under the forestry legislation. Between 1902 and 1954, there were five wildlife conservation laws in force in different Peninsular states, excluding those regulating on turtles and terrapin conservation. Later in 1955, all the 11 states consented to adopt the Wild Animals and Birds Protection Ordinance 1955. By 1972, the federal predecessor to the current wildlife conservation law i.e. the Protection of Wildlife Act 1972 came into force, repealing all other previous state legislation on wildlife conservation, except those concerning turtles and terrapin.
As a result, there are only three state wildlife conservation laws in force in Peninsular Malaysia today, dealing only with turtle and terrapin conservation, which are under the exclusive jurisdiction of states. They are the River Rights Enactment (Perak) 1915, which is the oldest conservation law still in force in the country today; and another two laws in Kedah and Terengganu. All the three laws today are regulated by PERHILITAN.
We are uncertain about the historical reasons that had caused state governments to be more willing to part with their jurisdiction over wildlife conservation areas, by consenting to allow greater federal regulatory control over them, in comparison to conservation parks. However, one possible motive on the part of the states could be linked to the fact that wildlife conservation areas need to be protected in a way which highly limits their capacity to generate income. Unlike conservation parks that can be regulated to be more accessible for public recreation and tourism with the payment of entrance and other fees, public access to wildlife conservation areas is highly restricted in order to minimise the presence of humans, for the safety of both species. At the same time, wildlife conservation areas may also be more costly to maintain, requiring more resource-intensive technical management measures, as they have been gazetted precisely to protect forested areas with a rich movement of particular wild animal species.
As mentioned above, we must also remember that under the forestry legislation, states may also establish their own ‘Forest Sanctuary for Wildlife’ functional class under the PRF. Such reserves are not large in size, but they do exist in Negeri Sembilan, Perlis, Selangor and Terengganu. They are under the authority of the state forestry departments.
So therefore, despite the utilisation of similar descriptive designations as their names, state and national parks in Peninsular Malaysia may fall under the authority of different legislation and authorities. The governance of conservation areas in Peninsular Malaysia is indeed very complicated, as they may fall under federal or state authorities, unlike in Sabah and Sarawak, which have greater exclusive authorities on forests and land matters.
Forestry and conservation legislation in Sabah
The main forestry legislation in Sabah is the Forest Enactment 1968, regulated by the Department of Forestry of Sabah. This law provides for the establishment and regulation of seven classes of Forest Reserves in the state.
Class 1 is known as Protection Forest, intended for conservation; Class 2 is known as Commercial Forest, intended for production; Class 3 is known as Domestic Forest, set aside for the use of Sabah indigenous communities although the size of such forests is very modest; Class 4 is known as Amenity Forest, a conservation forest dedicated for public recreation; Class 5 is known as Mangrove Forest, which is also intended for production; Class 6 is known as the Virgin Jungle Reserve, which are small plots of forests conserved and researched for their valuable representative quality of unique ecosystem features; and Class 7 is known as Wildlife Reserve, which includes only two areas in Tabin and Kulamba, the remaining wildlife reserves in Sabah being under the authority of the Sabah Department of Wildlife. Class 1, 6 and 7 are considered as conservation or totally protected forests by the forestry department.
For conservation areas, Sabah is governed by two main laws. The first is the Parks Enactment 1984, which establishes and regulates a network of Sabah Parks in both terrestrial and marine areas, under the authority of the Sabah Parks Trustee. The second is the Wildlife Conservation Enactment 1997, regulated by the Sabah Department of Wildlife, which allows for the gazetting of three classes of conservation areas dedicated to wildlife management, namely, Wildlife Sanctuary, Conservation Area and Wildlife Hunting Area, also on both terrestrial and marine areas. The latter also regulates the protection of the different classes of endangered plant and animal species in the state. Table 4 below summarises the forestry and conservation legislation for Sabah.
Forestry and conservation legislation in Sarawak
In Sarawak, its forestry and conservation laws are regulated by a single authority, i.e. the Department of Forests of Sarawak. This department however has had some of its functions, including enforcement, corporatised in 1996; these responsibilities are today being carried out by the Sarawak Forestry Corporation (SFC), as provided for under the Sarawak Forestry Corporation Ordinance 1995.
The main forestry legislation in Sarawak is the Forests Ordinance 2015. This law allows for the establishment and regulation of three classes of forests under the umbrella of the Permanent Forest Estate (PFE). The Forest Reserve and the Protected Forest are production forests, the differences in their legal constitution today are only slight, in comparison to the past, where the Forest Reserve used to receive a significantly higher degree of protection, in comparison to the Protected Forest. The Communal Forest Reserve meanwhile is protected for the use of the Sarawak indigenous communities, not unlike Sabah’s Domestic Forests, although its size is not reported in the annual reports of the Sarawak Forests Department or its website; its total size today is believed to be very small.
For conservation areas, Sarawak is governed by two main laws. The first is the National Parks and Nature Reserves Ordinance 1998, which establishes and regulates two classes of parks i.e. the National Park and the smaller sized Nature Reserve on both terrestrial and marine areas. The second is the Wild Life Protection Ordinance 1998, which establishes and regulates a network of Wild Life Sanctuaries on both terrestrial and marine areas. The latter also regulates the protection of the different classes of endangered plant and animal species in the state. The SFC is more directly involved in the regulation and enforcement measures of these conservation areas in Sarawak than the forestry department itself. Please see the summarised table 5 above for forestry and conservation legislation for Sarawak.
Data on conservation forests strewn across different network of authorities
As can be seen from the above, Peninsular Malaysia, Sabah and Sarawak each has two main conservation legislation, one for the establishment and regulation of conservation forests and areas, and another for wildlife protection. From these, at least three important matters can be noted pertaining to the network of conservation areas in Malaysia.
First, as described above, the main forestry laws of Peninsular Malaysia and Sabah, which are regulated by their respective forestry departments, also have provisions to establish not only production forests, but protection forests as well. Therefore, while there are wildlife conservation areas in Peninsular Malaysia and Sabah that are under the authorities of their respective conservation authorities i.e. PERHILITAN and the Sabah Wildlife Department, there are also other wildlife conservation forests in the two regions that are under the authority of their respective forestry departments. Likewise, while there are State Parks in Peninsular Malaysia that have been established under its forestry law, and there are also State Parks than can be established under a Perak conservation legislation. (Sabah simply opted for the term Sabah Parks, which sometimes may also be informally referred to as state parks by other parties.)
Second, while there are conservation areas called National Parks that can be established under the federal conservation law in Peninsular Malaysia, there are also those that can be established under state conservation laws in Johor and Sarawak.
Third, the way Peninsular Malaysia, Sabah and Sarawak organise their conservation authorities also varies. Although Peninsular Malaysia has two federal conservation laws, it has only one federalised conservation authority in the form of PERHILITAN, tasked to regulate both laws. Apart from PERHILITAN, Perak and Johor have also established their own state conservation agencies to regulate their respective network of conservation areas. Meanwhile, in Sabah, its two conservation laws are regulated by two different authorities i.e. the Sabah Parks Trustees and the Sabah Wildlife Department. In Sarawak, its two conservation laws are still under the jurisdiction of its forestry department, which however has had some of its functions, including enforcement, corporatised and transferred to the Sarawak Forestry Corporation.
As a result, conservation areas in Malaysia are placed under different networks of authorities in Peninsular Malaysia, Sabah and Sarawak. In Peninsular Malaysia, its terrestrial conservation areas may be managed singly or jointly by different governance structures; which may include the state forestry departments, the state offices or federal headquarters of PERHILITAN or state-specific authorities in Johor and Perak, depending on the legislative roots of their establishment. Meanwhile in Sabah, its conservation areas are governed by two state agencies and its forestry department. In Sarawak, its forestry department regulates both its production and conservation forests.
In addition, the conservation laws in Sabah and Sarawak also provide for the establishment of marine conservation areas up to 12 nautical miles from the low water mark, allowing in certain cases for entire national parks to be established in marine waters. In Peninsular Malaysia, except for the Penang National Park which includes the immediate sea surrounding it, beyond three nautical miles from the low water mark, marine national parks are established and regulated under a subsidiary fisheries legislation. These marine parks are regulated by an agency specialising in the conservation of marine ecosystems in Peninsular Malaysia.
Conservation forests as part of a larger network of conservation areas
In Malaysia and around the world, the governance of conservation efforts over terrestrial and marine areas may or may not be separated under different laws. A conservation legislation will often provide clarity on its geographical scope i.e. whether it is focused on terrestrial or marine areas, or both. A forestry legislation meanwhile, is obviously designed to establish and regulate only on forested areas, which themselves can span across different ecosystems, from tropical rainforests to coastal mangrove forests.
In Peninsular Malaysia, the National Parks Act 1980 allows for the establishment of National Parks on both terrestrial and marine areas. However, state jurisdiction over marine areas is limited only up to three nautical miles from the low water mark, as Malaysia’s territorial waters are under the jurisdiction of the federal government. The Penang National Park in fact, includes the seawater surrounding it. The Wildlife Conservation Act 2010 meanwhile clearly does not provide for the establishment of conservation areas in marine ecosystems.
As maritime and estuarine fishing and fisheries surrounding Peninsular Malaysia falls under exclusive federal jurisdiction, the establishment and regulation of its marine conservation parks are provided for by the federal Fisheries Act 1985 and its subsidiary regulations i.e. the Establishment of Marine Parks Malaysia Order 1994 and their subsequent amendments, which provide a review of the list of its conservation areas from time to time. These marine laws establish and regulate a network of Marine Parks in Peninsular Malaysia, under the authority of the Department of Marine Parks.
On the other hand, the conservation laws of Sabah and Sarawak are able to extend their authority over the states’ marine areas up to 12 nautical miles from the low water mark, as unlike Peninsular Malaysian states, the two members of the federation have been accorded shared jurisdiction over their maritime fisheries with the federal government. Hence the existence of many marine parks in Malaysian Borneo that have been established under the same legislation that has also created conservation forests.
This complexity in the governance of conservation areas is also not unique to Malaysia, as conservation efforts often trespass different jurisdictions and ecosystems in a given country and require specialised skills, expertise and resources in their management and regulation. Consequently, it is commonplace for various international and national processes to document conservation forests under a larger network of totally protected areas or conservation areas, which are inclusive of other ecosystems as well, in order to provide a larger picture on any national or international efforts at conservation.
A note on physical planning
A tool that has become increasingly important for forest conservation in Peninsular Malaysia and Sabah is physical and spatial planning, which is under the concurrent jurisdiction of federal and state authorities. Peninsular Malaysia, Sabah and Sarawak each has its own set of policies and laws on physical planning, as it involves matters relating to land, forests and natural resource management.
Physical planning in Peninsular Malaysia is under the authority of the Department of Town and Country Planning (JPBD), which regulates the Town and Country Planning Act 1974. Like land and forestry governance, a federal consultative body for physical planning has also been established in Peninsular Malaysia in the form of the National Physical Planning Council (MPFN). MPFN has been responsible for publishing the National Physical Plan (RFN) since 2005, with a review taking place once in every five years.
Subsequently, states are obliged to produce their respective Structure Plans through the JBPD state offices based on the latest RFN. Subsequently, in consultation with JBPD, local government offices will produce their individual District Local Plans based on their respective State Structure Plans, and if it is deemed as necessary, Special Area Plans will also be developed for targeted areas within each district.
In Sabah, physical planning responsibilities are delegated to the Sabah Town and Regional Planning Department (JPBPW) which regulates the Sabah Town and Country Planning Ordinance 1969 and produces the Sabah Structure Plan.
For Sarawak, the authority responsible for physical planning is its Ministry of Resource Planning and Environment, with a Planning Division tasked to develop policies and guidelines on urban planning in the state, including the Sarawak State Structure Plan, Local Plans and a master plan for particular areas and towns in the state. This division is also responsible for developing land use and zoning plans for the state’s industrial estates that are under the jurisdiction of the Sarawak Ministry of Industrial Development. Although Sarawak does in fact have a Town and Planning Ordinance 1952, this law reportedly has never been invoked, leaving the Sarawak Land Code 1958 as the main law regulating spatial and physical planning in the state.
Peninsular Malaysia and Sabah have taken progressive steps to include the zoning and conservation of forested and sensitive ecosystems in their physical planning efforts. However, implementation of the plans at the state and district level still faces a host of challenges. In order to undertake a more focused discussion on them, we will be discussing physical and spatial planning efforts in Malaysia in another article in the future.
With this basic knowledge on the structure of our forestry and conservation governance, we hope that the next time you come across data or even claims on ‘the size of forested areas’ in Malaysia by different parties, you will be able to quickly recognise how the information, including deforestation data produced from the analysis of satellite images, may or may not correspond to the different legal classes of forests in the country.
The most basic rule is to always ascertain the main focus of the data, whether they are referring to forested areas or forest cover, production forests, conservation forests or even conservation areas, or a combination of several classes of forests and areas, which may be described differently than the terms used here. Indeed, if we are involved in campaigns to save any part of a forest from destructive activities, including forest conversions, it is important for us to first learn of its legal class, reservation status and the legislation and authority that have jurisdiction over it.
We can certainly understand that the lack of coordination in the naming process of gazetted forests and conservation areas in Malaysian has caused much confusion amongst many laypersons attempting to study forestry and conservation data in the country. For example, it is unlikely we will ever find out why Perak has chosen to call its conservation parks as ‘state parks’, while Johor and Sarawak have opted for the grander sounding ‘national park’.
Nevertheless, we do hope that by now you have understood the reasons that have caused our forest and conservation area classes to be styled so freely by different parties, to the point where those with little knowledge on forestry and conservation laws can easily be confused. These reasons are rooted in two simple factors.
First, the legal classification and naming of gazetted forests and conservation areas in the country are bound by the different laws in force in the Peninsular states, Sabah and Sarawak. Federal classification of forested and conservation areas therefore are only administrative and not legal terms. As a result, different parties may end up utilising different terms in referring to the same unit of information.
Consequently, statistical data on our forested and conservation areas are also strewn across different networks of authorities in the three regions, increasing the possibility for inconsistencies to occur in their data tabulation and content by the different authorities. The next article will thus seek to address the issue of the management, tabulation and presentation of the data on our forested and conservation areas.
If you are interested to understand more about the laws on forests and conservation areas in Peninsular Malaysia and Sarawak, you will find the following reports on our website extremely useful: Encroachment on Orang Asli Customary Land in Peninsular Malaysia: Causes and Solutions; and The Land We Lost: Native Customary Rights and Monoculture Plantations in Sarawak.
For the summary of the authorities involved in forestry and conservation management in Malaysia, please refer to table 6 below.