New rules on building islandsJanuary 2, 2018 @ 7:51AM
By SALLEH BUANG
THE urge to create land from the sea has been around for ages. Historians tell us that artificial islands had been created in ancient Egypt, as well as in prehistoric Scotland and Ireland.
Other examples include the ceremonial centres of Nan Madol in Micronesia and the floating islands of Lake Titicaca (at the border of Bolivia and Peru).
In modern times, man-made islands include the Flevopolder in the Netherlands (having a total surface of 970sq km, making it the largest artificial island by land reclamation in the world), and Palm Jumeirah in Dubai, the United Arab Emirates.
Kansai International Airport in Japan (built in 1994) and Hong Kong International Airport (1998) were constructed on man-made islands. The famous Burj Al Arab was built on its own artificial island.
China has built at least seven artificial islands in the South China Sea, totalling 809.4ha by mid-2015. One such artificial island, constructed on Fiery Cross Reef near the Spratly Islands, is a military base, with a runway long enough to handle military aircraft. China is also building several airports on artificial islands.
Under the United Nations Convention on the Law of the Sea (UNCLOS), artificial islands are not recognised as harbour works. If these islands are built within 200 nautical miles of the shoreline, they are under the exclusive economic jurisdiction of the coastal state.
Artificial islands are not considered “islands” for purposes of having their own territorial waters or exclusive economic zones. On the high seas beyond national jurisdiction, any state may construct artificial islands.
I was thinking of land reclamation law at the weekend after reading a recent statement by Natural Resources and Environment Minister Datuk Seri Dr Wan Junaidi Tuanku Jaafar that all land reclamation works in the country would be halted until “a new national environment survey method is put in place”.
He added that a group of experts would soon come up with the new and improved Environmental Impact Assessment (EIA) and Detailed Environment Impact Assessment (DEIA) requirements.
Once these new requirements have been formulated, they would be submitted to the cabinet, the National Land Council and the National Physical Development Council for approval.
“Once they are approved, the new EIA and DEIA requirements will then take effect in the whole country, including Penang,” he explained.
Pending such approval, he advised the Penang government not to go ahead with land reclamation projects. The latter had planned to build three artificial islands south of the island (totalling 1,659ha) to help finance its public transport system, and build new highways to resolve traffic problems.
The state government said it had no choice but to embark on the reclamation project to raise RM46 billion required under its Transport Master Plan.
The project, dubbed the Penang South Reclamation Project or PSRP, is set to begin this year. The PSRP’s EIA report was put on public display last May and June to gather feedback.
Wan Junaidi further said a pilot study on Penang’s reclamation project would be carried out by his ministry, the results of which would be used as a benchmark for future reclamation projects in the country.
He added that a team of officials from his ministry, headed by Datuk Dr Azimuddin Bahari, would monitor all reclamation projects on the island.
In August, Wan Junaidi told the media that his ministry “has a mechanism” to deter Penang’s land reclamation project if the state government “is adamant about pursuing it”.
He said the director-general of the Land and Mines Department could take action by not granting the land title.
The minister said “the 1,800ha project is too massive and can change the shoreline in the area”, affecting not only the environment, but also destroying the mangroves, wildlife and marine life.
If the project continues, it will not only adversely affect the life of the local fishing community, but will also “cause a shift in the country’s continental shelf”.
Responding to Wan Junaidi’s statement, Seberang Prai municipal councillor Joshua Woo Sze Zeng said the proposed reclamation project “will not encroach on international borders” as the project was constructed southwards, within the border of Penang, and not westwards in the direction of Indonesia.
On Dec 29, 2016, I wrote in this column about the then proposed amendments contained in the Town and Country Planning Bill 2016, specifically Section 20B, which states in subsection (1) that “it shall be the duty of every Federal Government or state government department or agency to seek advice from the National Physical Council on a development proposal relating to any coastal reclamation…”.
Commenting on that provision, Penang executive council member Jagdeep Singh Deo had said that “advice is not something mandatory”. The term “advice” is not defined anywhere in Act 172 or the proposed bill.
That bill was passed in the Dewan Rakyat on Oct 26, 2016, after a vote by division with 63 for and 51 against. It is now known as the Town and Country Planning (Amendment) Act 2017 (Act A1522) and published in the Gazette on Jan 16, 2017.
As to when this new law will take effect in Penang, the state authority has to determine it as stated in Section 1(3).
Opinion remains divided on whether Penang can legally go ahead with its artificial islands project. What Putrajaya wishes to see is that the state government wait until the new EIA and DEIA requirements have been formulated, and in the meantime, take the necessary steps to “seek advice” as required under Section 20B of Act A1522.
I cannot predict how Penang will act in the next few months as the 14th General Election draws near.
Salleh Buang formerly served the Attorney-General’s Chambers before leaving for practice, the corporate sector, and then, the academia. He can be reached via firstname.lastname@example.org