In Sarawak, Justice Delayed is Justice Denied
As Malaysian timber giant Samling’s SLAPP suit against SAVE Rivers is adjourned for a fourth time, communities continue their fight against the logging company.
FIONA MCALPINE
May 26, 2023
Last week on the steps of High Court, in Miri, Sarawak, we witnessed a peaceful protest from community members from the Baram region of Sarawak, Malaysia. They sang Liling — the traditional folk song of the Kenyah — accompanied by the sape (a local lute), and performed the Indigenous hornbill and warrior dances. They were there to mark what should have been the beginning of hearings on timber giant Samling’s lawsuit against local advocacy group SAVE Rivers.
The suit contends that SAVE Rivers published eight articles on its website between June 2020 and March 2021 that made false allegations and defamed Samling and two of its subsidiaries. The articles report on community claims that Samling had not adequately informed and consulted Indigenous residents who have customary rights to the land. It also alleges that the articles included untrue statements about Samling logging Indigenous lands without properly obtaining their consent. SAVE Rivers and local communities stand by the allegations they have leveled against the company.
Protest is a relatively rare sight in Sarawak. A culturally courteous Indigenous-majority state, in Sarawak you speak politely, you respect your elders, and you certainly don’t dance and sing on the steps of authority without good reason. Last week’s protest was such an unusual sight that the police officers on the scene pulled out their phones to take pictures and record videos. After three hours of song, dance and chants, we were told by our lawyers that the adjournment hearing will be done by way of Zoom as the lawyer for Samling did not attend the hearing physically in Miri.
SAVE Rivers — The Borneo Project’s key project partner on the ground — has been heavily impacted by Samling’s legal action, a ‘defamation’ lawsuit which is widely regarded as strategic litigation against public participation (SLAPP).
“If Samling wins, SAVE Rivers and probably the directors will be silenced forever and may be ordered to pay compensation to Samling and even be declared bankrupt,” explained lawyer for the defense, Simon Siah. “Most certainly this will scare off environmental defenders from speaking up in the future against big corporations with deep pockets.”
Just a few days before the trial was set to go ahead, we learned that the case had been adjourned yet again. This is the fourth time in almost two years that the trial has been kicked down the road, leaving SAVE Rivers, a rare voice for Indigenous rights in Sarawak, gagged indefinitely once again as they await trial.
“I feel really frustrated,” said SAVE Rivers founder Peter Kallang, sitting on the courthouse steps. “Because I would like to see this done and over with so we can concentrate and do what we are supposed to do, which is support the Indigenous people. Now we are wasting our time, our resources, our finances, everything.”
Soon after we heard the disappointing news of the adjournment, we were informed that the Forest Stewardship Council (FSC) has accepted a complaint filed against Samling last November. The complaint concerns alleged “unacceptable activities” such as illegal logging, the trade in illegal wood, violation of human rights, destruction of high conservation value forests, and the significant conversion of forests to plantations: the whole gamut of the community complaints that are the subject of the lawsuit.
Back in 2021, community organizations filed formal complaints with the Malaysian Timber Certification Council (MTCC), the national body that oversees the certification Samling obtained for several of its contested concessions. The MTCC accepted the complaint and began a dispute resolution process. Rather than engage with the communities and civil society to address concerns through this process, the timber company instead slapped SAVE Rivers with a 5 million ringgit ($1.1 million) lawsuit, which is equivalent to 45 times SAVE Rivers’ annual budget. This move also effectively shelved the dispute resolution process, which has been put on ice pending the lawsuit.
After the MTCC process stalled, the communities and supporting organizations went to the Programme for the Endorsement of Forest Certification (PEFC), the international certification body that endorses the Malaysian scheme. PEFC simply said it had no power to do anything while a domestic complaint was under review. The complaints were placed in an administrative black hole while logging continued in the Baram.
Finally, SAVE Rivers and supporting organizations submitted a Policy for Association complaint to the Forest Stewardship Council (FSC), arguably the most respected international timber certification body. Although the concessions in the Baram area are not FSC certified, two companies under the Samling corporate umbrella hold FSC chain of custody certificates, and FSC requires Samling to comply with their policy throughout its corporate structure.
Thankfully, FSC is not hamstrung by domestic Malaysian legal matters and operates outside the reach of Samling’s influence. FSC’s acceptance of the case is a strong indication that the community claims against the company are not frivolous. The evidence from more than a dozen Indigenous communitiesincludes photos, videos, satellite imagery and testimony from multiple sources. The next steps are either mediation between Samling and the communities (if all parties agree) or an investigation.
If FSC excludes Samling from its scheme it will send a strong message that corporations cannot simply sue a human rights organization because they don’t like what it said. People across the world are already taking notice. Last month, more than 160 organizations came together and called on Samling to drop the suit. The United Nations has flagged the suit as potential SLAPP as well. Over 31,000 people have signed a petition calling on Samling to drop the case, and more than 8,000 people have sent emails via DoGooder and Eko campaigns, asking Samling CEO Lawrence Chia to withdraw the suit.
Despite the emotional and financial toll of defending itself against legal action, SAVE Rivers keeps working. The communities are determined to carry on as well, even with the threat that they too will be met with a lawsuit. As Erang Ngang, a community member from Long Tungan who joined the protest put it: “If there’s no avenue for appeal we will still continue to fight, we will stop the logging. It’s our livelihood. They are actually colonizing us. The damage that they cause is permanent. We have no choice but to keep fighting.”
We don’t know what will happen with FSC, or during the court proceedings when they happen. But whichever way the judge decides, we know Samling will not walk away reputationally unscathed. “There is a saying in Malay”, explained Kallang as we packed up to leave. “Berani tebang berani pikul”. It means if you dare to chop a tree, you dare to shoulder it yourself”.
Samling has tarnished its own reputation through the very process of trying to defend it. Oppressing the people who complained of oppression by the company does nothing but prove the communities right. The intimidation and divide-and-conquer tactics of the past are not working against a determined and organized front. It is clear the communities are no longer afraid.
“What is the worst they can do?” asked Siah at a community briefing. “The worst they can do is kill you, but they’re killing you already because they’re taking your forests and forest is life. Without their forests, these communities will die anyway. Continue to campaign, don’t be silenced because of this suit.”
