Teeing off in a forest reserve
This article was originally published at Malaysiakini : https://www.malaysiakini.com/news/463891
INVESTIGATIVE | In brochures and showrooms, Forest City's most iconic feature is its high-rise living spaces draped in dense foliage.
Described as a role model for a sustainable smart city, it is meant to be smart, affluent, and, as its name suggests, green.
However, it seems that the Forest City Golf Resort would find it difficult to boast of such green credentials.
A short drive from Forest City is the Sungai Pulai Forest Reserve, gazetted in 1962. It is a mammoth 8,334ha mangrove complex, almost twice the land mass of Putrajaya.
Sungai Pulai is also incorporated into the List of Wetlands of International Importance in 2003 under the Ramsar Convention.
According to the Ramsar Convention's site, Sungai Pulai is the largest riverine mangrove system in Johor and "one of the best examples" of a lowland tropical river basin, supporting rich biodiversity.
The highlighted area shows the 1962 demarcation of the Sungai Pulai Forest Reserve to the north, and the Tanjung Piai Forest Reserve to the south.
The site is also home to many endangered animals on the IUCN Red List, while playing a significant role in shoreline stabilisation and the livelihood of the local community.
A part of this forest reserve is now being transformed into the 800ha Forest City Golf Course Resort.
For a sense of scale, the size of the property is equivalent to the area of 1,200 football fields.
The RM1.2 billion project will include three world-class 18-hole golf courses and a luxury hotel.
One golf course was open to the public last September. It was designed by golfing legend Jack Nicklaus and his son Jack Nicklaus II.
"Surrounded by the Pulai River and its tributaries, the golf course has ample water supply, and is set in a natural landscape featuring the mangrove reserve," read an advertisement for the resort.
Satellite images from Google Earth suggest that the mangrove forest at Sungai Simpang Arang, a tributary of the Pulai River, was untouched as of Aug 19, 2017.
A subsequent image taken on Oct 17, 2017, showed the commencement of land clearing.
Satellite images show that land clearing works for the Forest City Golf Resort began sometime between August and October 2017.
Malaysiakini''s attempt to find out more about the classification of the land used for the resort hit a brick wall at the land office, as well as at the state and federal levels.
According to the Forest City website, work on the golf course began in July 2017.
However, portions of the Sungai Pulai Forest Reserve were only alienated as "development land" in January 2018.
This was outlined in the Rancangan Tempatan Daerah Johor Bahru dan Kulai 2025 (Penggantian) (Johor Bahru and Kulai District Local Plan 2025 (Replacement) that was approved by the state government on Dec 6, 2017, and gazetted on Jan 18, 2018.
The local plan is a city planning document.
Therein, the Sungai Pulai Forest Reserve is described as a "permanent forest reserve/mangrove forest reserve" and also "Environmentally Sensitive Area Rank 1" (ESA Rank 1), which means that no development, agriculture or logging shall be permitted except for low-impact nature tourism, research and education.
Strangely, the plan also describes parts of the Sungai Pulai Forest Reserve as both a "permanent forest reserve" and "developmental" area.
The resort is located in this "dual-identity" land.
The local plan described some parts of the Sungai Pulai Forest Reserve as both a “permanent forest reserve” and also a “developmental” area.
Lawyer Alliff Benjamin Suhaimi, an expert on land matters, explained that the status of a permanent forest reserve remains unchanged, even if it is demarcated as "developmental land" in the local plan.
"The continuance of existing reserved forest land should not be affected by any subsequent change in zoning decisions," he told Malaysiakini, citing Section 18(3) of the Town and Country Planning Act 1976.
To excise land from being a forest reserve, Alliff said, the "state authority" must first make a decision of excision, in accordance to Section 11(1) of the National Forestry Act 1984.
Who then would be the "state authority" as defined by the law?
Addressing this, Alliff said: "The Interpretation Acts 1948 and 1967 further defines the 'state authority’ as the ruler or Yang di-Pertua Negeri of a state and includes, in Negeri Sembilan, the Yang di-Pertuan Besar acting on behalf of himself and the ruling chiefs."
"So in the case of Johor, the state authority would be the Johor sultan."
Alliff further explained that the state authority might, by notification in the Gazette, further prescribe a category of land use on that piece of land after the decision of excision.
“That category will be the land use endorsed upon alienation of the title document of the said land by the state.
"If it is state land, the discretion lies with the state authority to change the category of land use of that particular land,” he added.
Apart from Section 11(1) of the National Forestry Act, the other method to convert forest reserve land is to invoke Section 3 of the Sultanate Lands Enactment 1934.
Pursuant to Section 3 of the Sultanate Enactment, the Johor ruler might make an order to convert a forest reserve land to "sultanate land" at his discretion.
In short, there are two possible methods for the state authority to excise a forest reserve. No matter which provision is used, a notification in the Gazette is a must.
However, at the time of writing, searches by Malaysiakini for the said notification in the Johor Gazette have not been successful.
Who owns the land?
To understand who actually owns the land, Malaysiakini commissioned a law firm to conduct the necessary land searches.
These applications were turned down by the Johor land office.
Asked if this was allowed by law, Alliff explained that the land office or registrar is legally bound to respond to such queries regarding land governed under the National Land Code (NLC).
"However, the NLC does not apply to sultanate land.
"Therefore, the land office's refusal to provide a search may not have violated any laws, if said land has become sultanate land," he added.
According to Section 385 of the NLC, for any application accompanied by the prescribed fee, the registrar shall issue to the applicant a certificate of search.
This certificate specifies the person or body for the time being registered as proprietor of the land, and also provide relevant information, such as title (taraf pegangan), registration date, and land tax amount.
Without the relevant Gazette and certificate of search, it is impossible to determine if the portion of the Sungai Pulai Forest Reserve that was turned into the golf resort was legally a "permanent forest reserve" or "commercial land".
Johor Menteri Besar Osman Sapian, who oversees land matters, did not respond to Malaysiakini's request for comment, and neither did his predecessor Mohamed Khaled Nordin, who held office when work on the golf resort began.
The Sungai Pulai mangrove forest reserve is under the jurisdiction of the Johor National Parks Corporation. It director Mustafa Kamal Abdullah also did not respond to Malaysiakini's queries.
EIA approved after construction?
Under the law, an environmental impact assessment (EIA) is required before mangrove swamps can be used for industrial, housing or agricultural purposes covering an area of 50ha or more.
However, the detailed environmental impact assessment (DEIA) of Forest City, which was approved by the Environment Department in 2015, did not mention the Forest City Golf Course Resort project.
When the Forest City Project started in 2014, the Johor government appeared reluctant to rein in the project.
It was only after Singapore lodged a complaint with Putrajaya over concerns that the project would affect the city-state's shorelines that the state government issued a stop-work order on reclamation work for the project, pending a DEIA by the developer and discussions with the DOE.
However, the DEIA only included the four man-made islands, but not the golf resort.
Siti Nurbaiyah Nadzmi, the press secretary of Energy, Science, Technology, Environment and Climate Change Minister Yeo Bee Yin told Malaysiakini that another EIA for the resort was approved by the DOE on Oct 2, 2017.
If the construction work on the golf course began in July 2017, as stated on Forest City’s website, this indicates that the project started even before the EIA approval.
The executive summary of the EIA report shows that the project site is on the Sungai Pulai Mangrove forest reserve.
The full version of the EIA report is not available on the DOE's official website, but an executive summary can be found online.
The report clearly states that the project site is within the Sungai Pulai Mangrove forest reserve.
It also noted that "permanent and significant impact" might arise due to the "conversion of land from forest to golf course with commercial and residential areas."
The golf resort is not the first time that a project linked to Forest City has been developed within the boundaries of the Sungai Pulai Ramsar site.
In March 2016, a 169ha plot was excised and developed into the industrial building system (IBS) factory that prefabricated building material for Forest City.
In essence, the IBS factory produces material that would allow Forest City to be assembled rapidly, like Lego parts.
The EIA for the IBS industrial estate was approved by DOE on Feb 7, 2017. The executive summary of the EIA report clearly states that the proposed project is to develop the mangrove forest into an IBS-type of medium industrial estate comprising industrial plots, workers' hostels and utilities.
A portion of the Forest City’s IBS factory is located within the borders of the Sungai Pulai Forest Reserve as demarcated in 1962.
Mangrove forests are highly interconnected within the ecosystem itself, but also make up a transitional zone between land and ocean, connecting and supporting both.
According to the information sheet for Ramsar Wetlands, in 2003, the Sungai Pulai mangrove forest, with its associated seagrass beds, intertidal mudflats and inland freshwater, supports a rich biological diversity of a total of 24 species of mangroves, and seven amphibian, 12 reptile, 55 bird, 26 mammal and 111 fish species.
Three types of near-threatened wetland-dependent birds – mangrove pitta, mangrove blue flycatcher and mangrove whistler – are found in the Sungai Pulai mangrove forest.
Besides that, the wetland also supports numerous threatened species and vulnerable primates, such as the long-tailed macaque and pig-tailed macaque, whereas the scaly anteater, common porcupine, smooth otter and bearded pig are either classified as vulnerable or near-threatened.
Since the use of the land involves the territorial sovereignty of each country, the Ramsar Convention does not hold any coercive or punitive power for violations of or default upon treaty commitments.
The Ramsar Secretariat did not respond to request for comments, but referred Malaysiakini to the Malaysian representatives listed on the Ramsar Convention website.
The Malaysian representatives, in turn, said the matter should be referred to the federal government.
Written requests for comments to Water, Land and Natural Resource Minister Xavier Jayakumar, his deputy Tengku Zulpuri Shah Raja Puji and ministry secretary-general Zurinah Pawanteh proved futile.
Malaysiakini has also contacted representatives of Forest City for comment.