The principal forestry law in Sabah is the Forest Enactment 1968. The Forest Enactment provides for the gazettement of forest reserves, their use and management as well as for control of cutting and removal of forest produce from "State land" (publicly owned land which is not a forest reserve). The Land Ordinance deals with alienation of State land whereas removal (but not destruction) of forest produce on alienated land is subjected to the Forest Enactment. A separate enactment deals with wildlife and parks.
The Forest Enactment contains extensive provisions for creation and abolition of forest reserves. At present the area of forest reserves gazetted under the Forest Enactment is 3.6 million hectares. The Enactment stipulates that none of the listed reserves can be de-reserved except when needed for a park or a game or bird sanctuary.
Forest Reserves may be declared on any State Land (alienated land may be acquired for the purpose, Forest Enactment of 1968, Section 13) which is not already reserved under a law. The declaration must classify the reserve as one of the seven classes: Protection, Commercial, Domestic, Amenity Mangrove Forest, or Virgin Jungle Reserve. The amendment to the Forest Enactment in 1984 designated 132,653 hectares as "Wildlife Reserve - Class VII".
The procedure for reservation is provided in Part II of the Enactment. Following publication of a notice of intention to constitute a reserve, an inquiry is conducted before gazettement of the area concerned as a forest reserve. The Yang Di Pertua Negeri may also declare the reserve, setting forth the "right and privileges which he thinks just to admit or concede' (Section 12).
The Forest Enactment has provision for forest management. The main provisions are in the form of prohibitions against conducting most activities on Forest Reserves without authorization. The conditions attached to authorizations are then a principal instrument of management. The power to make regulations is also used for management. It includes the power to authorize subsidies for encouragement of forestry as well to establish licence conditions, fees and exemptions and to regulate or prohibit the export of forest products and prescribe fees for exports.
The principal management measure applied in Sabah is the minimum diameter for felling commercial species. This is currently 60 centimeters for most species (Forest Rules 1969 Rule 11, Schedule 1). It is generally applied, but exceptions may be granted and clear-felling has been permitted for pulp wood supply.
The harvesting of forest produce and logging in State land and removal of forest produce from private land are all subjected to the Forest Enactment. There is no control over logging on private land, as long as the timber is not removed.
In addition to forest utilization subject to specific authorization, the Forest Enactment provides for traditional uses. The rights and privileges of traditional uses are specified when a forest reserve is declared. These rights and privileges may not be granted, other than by succession, without the Minister's consent. They are subject to cancellation if they are not exercised for three years, and the Yang Di Pertua Negeri may at any time "rescind, modify or add" to them (Section 14). The holder of a right or privilege may be required to obtain a free permit in order to remove products from a reserve (Rule 10). On State land (outside forest reserves), several types of "native" forest rights are recognized. Those "whose ancestors have been, and who themselves are dependent on shifting cultivation in Sabah for subsistence" may clear secondary growth for cultivation on land which is not under licence or closed to shifting cultivation (Rule 9). A native may also take forest produce from State land for the specified purposes of his own use or that of his village (Section 41, Rule 9).
Fees for forest produce are levied in part under the Forest Rules and as a condition of individual licences. The Rules provide for three categories of royalty: on round timber, timber for processing in Sabah, and "converted timber".
In addition to timber royalties there are a number of fees for occupation of land in a forest reserve (necessary for roads, landings and camps; for operation of vehicles and for processing plants).
A number of provisions are essentially aimed at protecting forest resources. The most general are those that prohibit injuring any forest produce, negligent felling and introduction of fire in a forest reserve. It is also an offence to cut without authorization a tree of less than the minimum diameter (generally 60 cm, Rule 11).
Collection of Revenue
As might be expected given the importance of forest revenue to Sabah, revenue collection is a major concern of the forest legislation. While the actual level of fees is not fully stated in the rules, methods of collection are. "All forest produce cut, sawn, converted, collected or removed" under a licence is liable to royalty, although exceptions are made for unmerchantable produce (Rule 12). The measurement and grading of produce by an authorized forest officer is determinative for royalty purposes, subject to appeal to the Chief Conservator of Forests (Rule 13). Royalties and fees are payable on demand or as specified in the licence. There are additional fees for late payment (id. Rule 14B).
Provision for a road is particularly important in Sabah where the only access to much of the State is by logging road. The Chief Conservator of Forests or a licensee that he has so authorized may exercise a right of way over alienated land for the purpose of extracting produce from a forest reserve. The right of way is subject to payment for "actual damage done to property but not in respect of the actual land concerned" (Section 18).
Offences and Enforcement
Violations of the protective provisions (damage of forest reserve through fire, prohibited acts in a forest reserve, illegal logging and removal from other areas, cutting of undersized trees) are punished by fine and imprisonment in the case of unauthorized entry for interference with fences or notice boards, by a fine alone [id. Section 20(1)(C) and 33(1)]. Various offences of fraud, concealment of evidence and receiving forest produce are also punished by fine and imprisonment (id. Section 30).
In addition to fines and imprisonment, the Forest Enactment authorizes the court to order the cancellation of licences, the payment of any fees that would have been payable in the case of unlicensed acts that could have been licensed, and compensation of ten times the value of forest produce removed or damaged (Enactment No. 2 of 1968, Section 34). There is also provision for compounding of certain offences [entering closed area, practising shifting cultivation (id. Section 20(C)], subject to the payment of an amount based on the fine provided for the offence (Section 35).
The Forest Enactment contains a number of presumptions that shift the burden of proof to the defendant charged with a forest offence. In prosecutions against licensees, if there is an extraction route from an area of alleged illegal removal to the licensed area, or if the volume of timber claimed to be covered by a licence exceeds the production of the licensed area, the elements of illegal removal or of possession of produce in respect of which an offence has been committed are presumed. In any case in which the existence of a licence, payment of any royalty, ownership of livestock or forest produce, or the provenance of forest produce is in issue, the burden of proof lies on the accused (id. Section 38) .
Power of Officers
The Forest Enactment empowers forest and police officers to conduct searches without warrant (except in dwellings), seize forest produce, and equipment and arrest suspected offenders where they are unlikely to appear on summons or refuse to identify themselves correctly (Section 36). Forest officers do not have the powers of ranking police officers to testify to statements made by an accused (cf. Malaysia Crim. Pro. Code, F,M,S. Cap. 6), although some seizures might have the same effect.
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