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In Cambodia, a new environment code languishes in legal limbo

Deforestation, illegal sand mining and other environmental problems are rampant in Cambodia, which has lost nearly a quarter of its tree cover since 2000.

In Cambodia, the Mekong River winds past Southeast Asia’s largest remaining lowland evergreen forest before filling up Tonle Sap, the region’s largest freshwater lake. The river, lined with valuable sand, is home to an abundance of endangered species like the Mekong giant catfish and giant freshwater stingray. It also holds more common fish species that make up the main source of protein for millions of Cambodians. The forests, too, house rare and threatened animals like the fishing cat and clouded leopard, as well as prized timber.

Rather than appreciating Cambodia’s natural beauty and biodiversity, many of the country’s well-connected tycoons have long seen it as a source of personal profit. Timber traders and sand dredgers, often closely linked to the Cambodian government, have plundered forests and rivers, destroying nearly one-quarter of the country’s tree cover in less than 20 years and sending riverbanks plunging into the water below. Mangroves, which protect Cambodia’s delicate coastal ecosystems from the elements, have also been cleared en masse to make room for agriculture projects and large-scale development.

The assault on Cambodia’s natural resources has decimated habitats for the benefit of the country’s rich but threatened wildlife, which are confined to smaller and smaller areas. But it isn’t only wildlife that’s been affected. Ten years ago, Phnom Penh, the country’s capital, looked very different.

Sprawling near the center of the city was a 90-hectare (220-acre) lake, rimmed with many of Phnom Penh’s most popular guesthouses and bars. More importantly, it acted as a major rain catchment area. In 2010, the lake was filled in to make way for new developments, including a trendy outdoor mall run by Prime Minister Hun Sen’s daughter. The result was the destruction of the city’s natural drainage system, leading to a marked increase of flooding.

Enter Say Sam Al and the Environment and Natural Resources Code. In the face of this rampant misuse of the country’s resources, Sam Al was unveiled as the new minister of environment in 2013, and purportedly set to work reforming Cambodia’s environmental laws, which had done little to slow the steady march of destruction.

In 2015, the Ministry of Environment began drafting the ENR Code, a sweeping piece of legislation that was meant to revolutionize the country’s entire environmental law framework.

Experts pointed out some issues in the draft legislation: for example, NGOs felt the emphasis on community participation should be stronger, and called for the law to require community participation at all stages of a project, including preliminary planning. Other experts noted that terms like “customary tenure rights” were vague, and suggested enhanced recognition of Indigenous claims to land.

But while the draft was not seen as perfect, it was welcomed by advocates.

Matthew Baird, one of the lawyers who consulted on the drafting of the code, said it “establishes a new conservation regime for Cambodia.” He declared Version 7 the “Final Draft” and said it would be considered by the National Assembly in March 2017.

“On behalf of civil society organisations, we are pleased with and congratulate the progress of the Draft Environment and Natural Resources Code,” the NGO Forum wrote in July 2018, along with suggestions to further improve the code.

“It is expected that the Government will finalize and adopt this legislation in 2019,”  George Cooper, a lawyer for the Swiss government-sponsored Mekong Region Land Governance project, wrote in March 2019. While pointing out some areas for improvement, Cooper said that, if adopted, the ENR Code would “provide higher levels of environmental protection, openness and accountability than is the case with virtually all of Cambodia’s existing laws.”

But more than five years have passed since the government first began working on the legislation, and two years since the most recent draft was submitted. As the bill languishes in legal limbo, Cambodia’s natural resources continue to be plundered at an alarming rate.

Cambodia’s laws on anything that touches upon environmental issues are not only grossly insufficient, but are also systematically ignored if not outright violated.

Alejandro Gonzalez-Davidson, director, Mother Nature Cambodia

Hok Menghoin, environment programme manager at the NGO Forum, tried to recall which version of the draft was the latest. “Right now we’ve come up to version 11.1 or 11.2. I think 11.2,” he said with a laugh during a recent phone interview with Mongabay.

The code was initially developed in consultation with legal experts, NGOs, and the United Nations Development Programme. All of the legal experts contacted by Mongabay either declined to comment, did not respond, or said they were no longer affiliated with the project. The UNDP also declined to comment. The NGO Forum and the Prey Lang Community Network (PLCN), both civil society representatives, say they now feel they have been cut out of the consultation process.

Menghoin said he hopes to see the law enacted soon, but adds he is “concerned.” Last year, he attended the annual forum of the Ministry of Environment, where, he said, officials remarked that, “the technical team is still working with relevant ministries to clear some points, especially to clarify responsibility.”

In other words, the Ministry of Environment is still discussing how to divvy up authority with other relevant ministries, such as the Ministry of Agriculture and the Ministry of Mines and Energy. Other sources indicate that this process is more of a conflict than a conversation.

“During the second consultation, we had observed the challenge between the Ministry of Environment with Ministry of Agriculture, Forestry and Fishery that both of them tried to have an influence whatever they want on the Code,” PLCN said in an email.

Marcus Hardtke, a conservationist with decades of experience in Cambodia, calls the ENR Code a “power grab” by the Ministry of Environment seeking to take control of valuable resources.

Hardtke says conservation in Cambodia is about “state control over resources and land,” whereby government officials aid and profit from the illegal exploitation of natural resources. The ministry that controls the land and resources benefits from this arrangement, while the others are left out in the cold.

Environment Minister Sam Al is the son of the Senate president, Say Chhum, a vice president of the Cambodian People’s Party that has ruled the country since 1979. Sam Al was presented as a reformer and environmentalist when he took over the ministry in 2013, but rampant illegal logging and other environmental disasters have continued under his watch. “The CPP princeling has by now turned into a frog, pursuing an aggressive policy against civil society, media and local environmental activists he cannot fully control,” Hardtke says.

A spokesperson for the Ministry of Environment did not respond to multiple requests for comment.

‘A shadow system’

Menghoin declined to comment on these sensitive issues, saying he’s not a political analyst. He says the most important aspect of the ENR Code from a civil society perspective is to increase the ability of communities to manage their own resources.

“We think that in Cambodia we have good laws, we have many laws, many policies for environmental protection, but the challenge, what we have noticed is the process of enforcement and implementation at the subnational level,” he says. He says the new code would “decentralise” the management of natural resources to include local communities as “co-managers.”

Hardtke says in addition to the actual legal framework, there is a “shadow system” that “governs reality on the ground.” In this system, rather than facing legal consequences, illegal loggers simply pay off the right people. Small-scale loggers pay a fee at checkpoints, while “the big illegal loggers make arrangements at higher levels, like paying a park director, district governor, military on a monthly basis,” Hardtke says.

For example, in 2018 the Environmental Investigation Agency found evidence of rampant illegal logging in three sites which the government was aware of but took no action to curb. The EIA witnessed firsthand forestry rangers and other officials blocking roads for timber smugglers who paid bribes in the form of “tolls.” One of the three sites was the forest around the Lower Sesan 2 dam, where loggers were accused of far exceeding the area they were given permission to clear for the dam’s construction.

Hardtke says this shadow system is “quite sophisticated” as “it has to balance the interests of different stakeholders.” But it can also lead to conflicts, and sometimes violence. “This is more and more the case as the forests are fading away and the fight for loot is heating up,” he says.

Little incentive for reform

In 2017, Cambodia dissolved its opposition party, effectively transforming the government into a one-party dictatorship. The CPP occupies all 125 seats in parliament, and thus could easily pass any law if it wanted to. But with no opposition to pressure it, and having already alienated the international community during its authoritarian slide, the government has no incentive to pursue reforms.

The ENR Code isn’t the only long-awaited reformist law stuck in limbo. A draft Access to Information Bill, supported by Sweden and UNESCO, has been in the works since 2004. It was initially a source of some excitement, but civil society’s mood on the legislation has gradually soured, and now it, too, sits in a no-man’s-land.

“Certainly the demise of the political opposition, the crackdown on free media and aggression against civil society has reduced the pressure on the government to reform,” Hardtke says.

Even if the ENR Code is passed into law and enacted, it faces another barrier: enforcement.

“Cambodia’s laws on anything that touches upon environmental issues are not only grossly insufficient, but are also systematically ignored if not outright violated,” says Alejandro Gonzalez-Davidson, director of activist group Mother Nature Cambodia.

For example, he says powerful companies and individuals often completely bypass the required environmental impact assessment process. “The government … sold the country’s largest island, Koh Kong, to the notorious LYP Group, before any environmental impact assessment had even been started,” he says, referring to a company run by Ly Yong Phat, a business tycoon and CPP senator.

In another example of flagrant misconduct, endangered gibbons have been seen living on the property of Prime Minister Hun Sen’s nephew, despite the ownership of rare or endangered species being outlawed under the 2002 Forestry Law.

It is common for Cambodian laws to guarantee rights and freedoms, but then contain a loophole that allows authorities to easily bypass these restrictions. A good example is the Telecommunications Law, which prohibits phone tapping, except when approved by a “legitimate authority.” There are no stipulated limitations to this undefined authority, and the reality is that phone tapping is rampant.

Similar issues can be found in Cambodia’s current environmental laws: The Forestry Law prohibits the operation of a sawmill within 5 kilometers (3 miles) of a permanent forest reserve, but the Ministry of Agriculture may simply “grant an exception” if it believes it will only have a “minor” environmental impact.

The law also bans the harvesting of forestry products in “protection forests” but gives the government unchecked authority to reclassify them as “production forests,” thereby permitting such activity.

While most consultants seem to think the ENR Code would be an improvement on the current situation, Hardtke and Gonzalez-Davidson have their doubts that the government would ever actually allow meaningful reform.

“Unfortunately, as we have seen with other laws in Cambodia, the government is playing along during this process, often led by western consultants, but the final draft is then sanitised and stripped [of] good governance criteria and safeguards,” Hardtke says.

This story was published with permission from Mongabay.com.

 

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