Legal classes of forests and conservation areas in Malaysia

Part 1: Federal data classification

Although a forest by any other name is still a forest, under the law, it can be a whole different story. The lack of knowledge on how forests are classed and protected in this country has led to a lot of confusion amongst the public, especially when questions on the remaining size of our forested areas or forest cover are discussed and varying figures and claims are thrown around by different parties.

However, if you have a keen interest in forest protection in Malaysia, you would have done your research and initially be shocked to find out that a ‘permanent reserved forest’ can actually be logged legally. Subsequently, you would start to reflect on how indiscriminate logging, even if it is legal, can in fact be as destructive as illegal logging. You would start to wonder too, why a widespread narrative fixating on how illegal logging is a threat to our forests, despite the fact that since the 1960s, too much timber has been extracted under permits legally issued out by our state governments. (Whether they are largely accounted for in accordance with the timber royalty, export and tax laws, is another story.) Last but not least, your shock will receive an upgrade when you realise that a timber tree or oil palm plantation can also be legally grown in what you recognise as part of a gazetted forest in Malaysia. 

How could all these be, you may ask? This discussion will help you understand the basics of the policies and laws on forestry and conservation in Malaysia. It will explain to you how our forests and conservation areas are classed, governed and counted, which hopefully would facilitate you in following the various conversations on deforestation and forest protection at the state, national and international levels. The first part of this article will discuss the general classification of forestry and conservation data by the federal government, while the second part will be devoted to discussing their legislative roots.

At the end of your reading, we hope you will be able to realise the importance of questioning the health and quality of our existing forests, beyond the polemic of the total size of our forested areas or forest cover. We also hope you will also finally understand, unfortunately, why you can actually stumble upon a tree plantation in the middle of a Permanent Reserved Forest in Gua Musang, Kelantan, or in a Forest Reserve in Kalabakan in Sabah, or an oil palm plantation in a Permanent Forest Estate in Belaga, Sarawak.

Federal constitution

To proceed, we will have to begin with the Federal Constitution. The following matters provided for by our Federal Constitution are key to understanding the basic governance structure of forestry and land governance in Malaysia.

First, matters related to land and forests are under the jurisdiction of state governments, leaving our federal government with a highly limited role in the decision-making process pertaining to forests and land in Malaysia. As a result, the gazetting of forests, conservation areas or just about any land for that matter, the issuance of logging permits, the collection of timber royalties and the issuance of monoculture plantation leases on forested land are all under state jurisdiction. This jurisdiction on land also extends to rivers, freshwater lakes and freshwater fisheries.

Second, within this limitation however, the Federal Constitution has provided the federal government with the power to establish the National Land Council, which is tasked to determine national policies pertaining to the promotion and control of the utilisation of land throughout Malaysia for mining, agriculture, forestry and other purposes and the administration of their related laws. Pursuant to its powers, the National Land Council went on to establish the National Forestry Council, which in 1977, formulated the National Forestry Policy. Both councils are chaired by the respective federal ministers in charge of land and forestry and their other members consist of representatives from both the federal and state governments.

The establishment of the National Forestry Policy paved the way towards the enactment of the National Forestry Act 1984, which established the federal authority of the Department of Forestry of Peninsular Malaysia (JPSM). Prior to this, Penang, Selangor and Malacca, formerly part of the colonial Straits Settlements, were enforcing the Forest Ordinance 1908, while all the other states in Peninsular Malaysia were utilising another piece of forestry legislation, the Forest Enactment 1934.

The enforcement of this federal law however, will be undertaken by the respective state forestry departments which are under the leadership of state governments, while being bound to its federal headquarters and the National Forestry Council largely on matters related to policymaking and administrative matters. The federal law is only enforced by the federal headquarters of JPSM over forests located in the federal territory.

Third, the Federal Constitution also authorises a specific legislative procedure for federal laws passed by the parliament to regulate matters that are within the jurisdiction of state governments. These laws, such as the National Forestry Act 1984, may be passed by the parliament to accomplish any international commitments the country has entered into, promote governance uniformity amongst states, as the case is with the forestry law, or fulfil a state request. 

However, before such laws can come into operation at the state level, they must first be adopted by a law made by the state legislature itself, in order to legally transform the federal statute into a state legislative document. Legally, each of the state legislature in Peninsular Malaysia has the right to amend such laws, or in fact to even repeal them altogether if it so wishes, although it may not have the political freedom to do so. Therefore, the National Forestry Act 1984 in actual fact operates as individual state enactments, except in the federal territory. Its renaming at the state level will reflect this adoption process and the year it was actually passed by the respective state legislatures, somewhere between 1985 and 1988. 

Fourth, as members of the federation of Malaysia, Sabah and Sarawak possess specific political and legal privileges not accorded to the Peninsular states. Amongst them, Sabah and Sarawak are excluded from federal laws that have been passed to provide uniformity in land and local government governance. They are also further excluded from national plans on land utilisation, local government, development and other related matters. To put it simply, Sabah and Sarawak have exclusive legislative power over land, forestry, conservation, agriculture, local government and physical planning matters. Additionally, it also has jurisdiction on marine areas up to 12 nautical miles from the low water mark, while the Peninsular states’ authority extends only up to three nautical miles from the low water mark. Consequently, the two states have formulated their respective state forestry policies and enacted their own laws on land, forestry, conservation, environmental protection and a handful of other natural resource related laws. Processes related to the National Land Council and the National Forestry Council are also not applicable to both states. In addition, as export duties from the timber produced by the Peninsular states are collected by the federal government, leaving them with the power to only collect royalties from the harvesting of timber itself, Sabah and Sarawak are entitled to keep both payments.

Last but not least, matters related to the conservation of protected areas and wildlife are under the shared jurisdiction of both federal and state governments, with the exception of turtles.

(The term turtle has been translated into Malay as penyu in the Federal Constitution. While in English, the turtle may colloquially include marine turtles as well as freshwater species such as terrapin, on top of the land dwelling tortoises. In Malay, penyu strictly refers to the marine species. However, for the purpose of the law, the English meaning appears to have prevailed, as riverine species such as terrapin or tuntong may also be referred to as turtles in law, despite the fact that in Malay, the tuntong is a riverine species, and is not in any way a type of penyu. All over the world, there has been considerable confusion over this matter due to the fact that the common names and categorisations of turtles, terrapins and tortoises are highly varied in different languages and dialects. These different naming systems may conflict from one language to another and may also not be harmonised with their scientific names.)

Around the world, the policies, laws and regulators for conservation efforts are often separated from those on forestry management, as conservation and forestry management have different objectives and require different technical expertise. This is the reason for the existence of federalised conservation laws and agencies operating exclusively in Peninsular states, as well as state conservation laws and agencies in all the three regions.

State land forests vs. gazetted forests

All over the world, national and international forestry and conservation authorities must develop an efficient methodology to manage the tabulation of their statistical information, in order to produce organised information on the state of forests and conservation areas, whether nationally or internationally. Apart from analysing the data on the biological classes of forests and ecosystems, which will not be discussed in this article, such a task also involves the classification and presentation of statistical data that can coherently differentiate and describe the extent to which forests and conservation areas are legally protected.

In Malaysia, such a task requires our federal authorities (or any other party for that matter) to develop a structured way of classifying data that are rooted in a variety of legislative frameworks, sourced from different authorities in Peninsular Malaysia, Sabah and Sarawak. This is why confusion can arise, as terms and classes describing the data can be different while sounding almost similar, as one moves from federal to state authorities or to a single conservation agency. 

The first distinction that must be made by those seeking information on our forested and conservation areas is to distinguish forest classes that have been gazetted from those that have not been gazetted.

Forests that have not been reserved through any gazetting process under any legislation are generically referred to as state land forests. Without a reservation status, they are still under the jurisdiction of the respective main land legislation and authorities i.e. the National Land Code 1965 in Peninsular Malaysia, the Land Enactment 1930 in Sabah and the Land Code 1958 in Sarawak. Forests that have been gazetted meanwhile can be further classified into different categories and subcategories, depending on the objectives and extent of the classification exercise. Apart from these two broad classes of forests, occasionally, we may also see a smaller class of forests in our forestry data. These are the forests found on land with private documentary titles, known as alienated forests.

Federal statistics will typically group the largest class of gazetted forests in the country, generically described through terms that indicate their permanency, often termed as the permanent reserved forests, without any further subclassification. Subsequently, there will also be another set of federal data focusing on the size of gazetted totally protected areas in the country, which may be limited to terrestrial areas or inclusive of protected marine areas as well. Table 1 provides a summary of the typical manner the different classes of forested and terrestrial conservation areas in Peninsular Malaysia, Sabah and Sarawak are categorised by federal data tabulation.

Once a forest is gazetted by a state government, it no longer falls under the jurisdiction of the land legislation and authority. Instead, it will now be under the full authority of either the forestry or conservation law that has been used to gazette it, as well as its designated authority. It will be subject to regulations that have been set to achieve specific management objectives, in accordance with the law and regulations in concern. 

The actual legal terms applicable to name these gazetted forests (e.g. permanent reserved forest, forest reserve, protected forest, national park, state park etc.) and if applicable, the subclasses that they may fall under, are dependent upon the laws and subsidiary regulations that have been used to gazette them. A gazetting process must describe the boundary and size of the forest or area that falls under the reservation exercise and grant it with a legal name, indicative of its legal class and preferably, location. A map showing the details of the boundaries of the area in concern is also often provided, although at times, this may not have been done in the past, leading to a lot of technical issues in respect of the precise size of some of our gazetted forests and areas. The law also further provides descriptions on the gazetted forest’s management objectives, the authority that is in charge of it, activities that can or cannot take place within it, among others.

State land forest: Forested areas that have not been gazetted

A forested area that has not been gazetted is termed a state land forest. In Peninsular Malaysia, Sabah and Sarawak, its respective forestry departments have limited authority to regulate state land forests, as the state land agencies also have authority over them through the main land legislation. The authority of the forestry departments, however, may increase once a logging licence is issued over a state land forest, an operation that is under its jurisdiction. Despite this fact, logging operations on a state land forest are also subjected to timber extraction regulations that are less stringent, in a comparison to a forest gazetted for production purposes. Forestry departments also have the authority to conduct other management actions in state land forests, including scheduled forestry inventories for the purpose of recording our national forestry resources.

Further, state land forests are also more vulnerable to land use conversions. If the state decides that a state land forest is to be cleared for an infrastructure project, this can be done much more easily, without the hassle of a degazetting process. It is for this reason, states are frequently called to gazette more and more forested areas under the relevant laws, in order to bring them under the full jurisdiction of either the forestry or conservation laws and agencies, hence bestowing them with stronger legal protection against unsustainable activities.

Permanent reserved forests: The largest class of gazetted forests

The largest class of gazetted forests, typically termed at the federal level as the permanent reserved forests, in actual fact consists of forests that are known as the Permanent Reserved Forests in Peninsular Malaysia, the Forest Reserves in Sabah and the Permanent Forest Estates in Sarawak, all under the authority of their respective forestry legislation and departments.

The permanency and reservation associated with the gazetting of these forests however, do not actually imply that they cannot be logged at all. Instead, such terms are employed only to indicate that they by law must remain as forests, unless they are degazetted.

In Peninsular Malaysia and Sabah, this broad class of permanently reserved forests, under their respective forestry legislation, may be categorised as either production or protection forests. The production forests are forests where activities such as logging and monoculture plantations are allowed to be carried out under a licence issued out by the forestry departments. The protection or conservation forests are forests where no such activities are ever allowed. 

This simple broad categorisation of the permanent reserved forest at the federal level however rarely indicates the subdivisions between production and protection forests in Peninsular Malaysia and Sabah. Furthermore, the Permanent Forest Estate in Sarawak does not contain any protection classes at all. In Sarawak, all protection or conservation forests and areas, although still under the authority of its forestry department, are fully regulated by its conservation laws.

Production forests: Logging and monoculture plantations

The most common mistaken assumption about the permanent reserved forests is that such forests do not encompass production forests, where logging and monoculture plantation activities are allowed to take place, since the word ‘permanent’ in many people’s minds seems to connote a level of protection that would disallow destructive changes to the integrity of the forested ecosystem concerned. Well, semantics aside, this is simply not the case in Malaysia and in many international forestry data as well.

The production forest is a permanent reserved forest that has been gazetted for activities such as logging, which by law, must be conducted sustainably under strict management plans, in accordance with the regulations, administrative directives and terms of its licence, as issued out by the forestry department in charge. Hence, the permanency implied here is that such forests supposedly will be logged sustainably, to the point where logging activities can be conducted in perpetuity, as a result of highly regulated timber extraction methods, rates and cycles, as well as post-logging rehabilitation treatments in between those cycles.

Furthermore, from the 1990s onwards, Peninsular Malaysia, Sabah and Sarawak have unfortunately amended by their respective national and state forestry policies and laws to also allow for a certain portion of their production forests to be converted into monoculture plantations, while retaining their gazetted status. We will be discussing this very important matter in greater detail in another article.

In summary, each time you see a very destructive logging or clear-felling plantation development operations taking place in an area you recognise as being part of the permanent reserved forest, do not directly jump into conclusion that the operations are illegal in the eyes of the state, unless you are certain that they have been carried out in violation of their licensing terms and conditions, for example, if the operations are in breach of their authorised boundaries. 

Most of the time, they are perfectly legal in the eyes of the state. However, if such operations take place on indigenous customary territories, which is not uncommon at all, this perspective can well be challenged by the people. While statutory laws on indigenous customary land rights are beset with many weaknesses, the scope and extent of such rights are supported by the Federal Constitution and several landmark judicial decisions. This topic will be discussed in another series of articles and have in fact been comprehensively analysed in our past publications.

Protection, conservation or totally protected forests and areas

Apart from the permanent reserved forests, our federal authorities will also provide a separate tabulation on protection, conservation or totally protected forests or areas. A significant size of such areas has been gazetted under various conservation laws, which will be discussed further in the next part of the article. They are regulated by a host of conservation authorities in Peninsular Malaysia and Sabah and by the forestry department in Sarawak. 

Basically, they form another network of gazetted forests and areas, outside of the authority of the forestry legislation. They are also often documented as part of a larger network of protected areas, which would be inclusive of other terrestrial ecosystems other than forests, such as wetlands, and may include or exclude marine areas, depending on the purpose of the data publication by a federal authority.

The governance of conservation forests and areas posts a different complexity of its own, for a host reasons, which will be discussed in the next part of this article. For example, by right, the tabulation of conservation forests in this country should also include forests that fall under the protection category of the permanent reserved forests in Peninsular Malaysia and Sabah. However, this is rarely done by federal data tabulation.

Conclusion

The terms such as permanent reserved forest, production forests, conservation forests or areas and totally protected forests or areas, when used at the federal level to tabulate the different legal classes of forests and conservation areas that have been gazetted by the states throughout the country under a host of different legislation, are purely administrative terms. Legally, they do not exist. The federal government does not have the power to gazette forests or even land for that matter in the country, save for those located within the federal territory. In order to know their actual legal classification in the eyes of the law, one must return to the actual legislation that has been used by state governments to gazette them.

This article has explained to you that at the federal level, the two most basic categories of forests in the country are classed based on whether or not they have been reserved through a gazetting process. Gazetted forests are deemed to have a more permanent or protected legal status than state land forests; hence the usage of terms such as ‘permanent’ and ‘reserve’ that have confused the public. The gazetted forests in turn are further divided into two categories i.e. production forests or conservation forests. 

While the permanency of gazetted conservation forests is ensured through total legal protection against activities such as logging, the permanency of the gazetted production forests is supposedly protected through the implementation of measures that can ensure that any exploitation conducted within them, including logging, will be conducted sustainably, or so the argument goes. While we may still be able to agree that a forest that has been logged is still permanently a forest, this argument on permanency unfortunately has been stretched way too far than the gymnastics of linguistics may reasonably allow, when such gazetted production forests have also been allowed to be converted into monoculture plantations. In the next part of this article, we will be discussing the different classes of forests and conservation areas in Peninsular Malaysia, Sabah and Sarawak in greater detail.