Riparian, beach reserves law revisited

Published on: Sunday, July 14, 2019

By: Kan Yaw Chong

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Riparian simply means wetlands adjacent to rivers and streams (small, narrow rivers). They are meant to be kept, not disturbed.

In Sabah, both riparian and beach reserves are required by law. But what people may not know is the law which requires riparian reserves is also the law which requires beach reserves.

A law binds all – the government included – to observe and perform all its provisions.

The long disregarded law

This is the law we are looking at – the Sabah Land Ordinance (Cap 68).

Section 26, under the sub-heading, Rivers and seashore reserves, and ridges of hills, it reads:

26. {1) Unless otherwise expressly provided in any title, the entire property in and control of the waters of all rivers, creeks, streams and watercourses, and of the seashore below high water mark is and shall be vested in the Government.

(2) The Government also has the power to reserve such portion of land as may be deemed advisable along the banks of rivers, streams and creeks, or along the seashore above high water mark, or along the ridges of hills. Such reservations shall be shown on all documents of title.

Intact mangrove riparian reserve near the mouth of Kinabatangan river keeps fish, prawns and crabs reproducing.

First, notice that mandatory riparian (wetland adjacent rivers) reserves and beach reserves are twined simultaneously.

A two-in-one law binding to all

That is, the law that requires riparian reserve is also the same law that requires beach reserve in the same breath.

Some may say its provisions bind the citizens but not politicians or all-powerful governments. False.

Surprise discovery of riparian reserve markers in Sukau

For example, take the last paragraph of sub-section (2): ‘Such reservations shall be shown on all documents of title.’

Is compliance to this required of Government?

By luck or by accident, Daily Express found Land and Survey Department did or had to.

A violation of riparian reserve law downstream Sukau destroys wildlife.

In 2016, one villager cut and set a huge fire to a riparian forest to the riverbank right in Sukau – the hot seat of world-famous river cruise wildlife ecotourism and shocked everyone!

Tourists yelled, flooded Daily Express with pictures of the inferno.

We asked one authority what’s going on, the reply was an insipid “local villager rights. Not satisfied, we investigated”.

To cut the story short, Alex Yee and I joined a ground visit by then Forestry Director Datuk Sam Mannan.

Lo and behold, we found boundary stones driven into the ground, 60 metres from the riverbank.

Land office complied, villager didn’t

Clearly, the Land Office representing the Government complied with this riparian reserve law by marking out a 60-metre wide setback.

But the outright violator was the villager who cut 60 metres of riparian reserves until he hit Kinabatangan River.

Compulsory riparian reserves soon under MSPO certification

The Government is expected to get tougher soon.

In an unyielding move, Primary Industries Minister Teresa Kok said all palm oil producers big or small must be 100pc MSPO (Malaysian Sustainable Palm Oil) certified by 2020.

Korean tourists: Sunset at the Tanjung Aru beach is ‘beautiful’ and ‘wonderful’.

Legality a must

A key criteria for certification is legality. Principle 3 of MSPO requires “all operations shall be in compliance with applicable local, national and ratified international laws and regulations”.

The local law here points unmistakably to Section 26(1)(2) of Sabah Land Ordinance.

A specific legal requirement under Principle 3 goes further, saying, “legal boundary markers should be clearly demarcated and visibly maintained on the grounds where practical”.

Kok explains her uncompromising stance by saying, “otherwise Malaysia cannot sell its palm oil”.

What the Government is saying is, “OK, you guys, comply with the law on riparian reserves or else you cannot sell your fresh fruit bunches or oil”.

But if the Rule of Law espoused by especially Prime Minister Tun Mahathir Mohamad applies to riparian reserves, what about beach reserves provided in the same law?

Question of law arising from Tg Aru beach project

Specifically, we are referring to the famous natural Tanjung Aru Beach, most of which will be reclaimed and buried for good once the proposed development project goes ahead?

The question of law has been raised.

On the one hand, the Government tells oil palm growers to comply with the riparian reserve part of the law, or else; and on the other hand, frees itself to break the beach reserve part of the same law?

We are not saying the Tanjung Aru development should be stopped. In fact, many of the beach front areas above the water marks are so degraded that a top end development is necessary to reverse the rot.

Right: Beach popular with tourists will be retained, says Datuk Christina Liew. Keep Beach 2 too?

The only contentious issue is the beach itself.

Deputy Chief Minister-cum-Tourism, Environment and Culture Minister Datuk Christina Liew has assured Daily Express that Beach One will not be touched.

But if Beach 2 can also be spared, it will boost acceptability by most.

So, what is really the big fuss about observing the beach reserve law?

The most profound reason for beach reserve – sea turtle procreation

Lots of reasons. But the most profound one is these are seats of procreation for sea turtles – one of the most bankable marine creatures for the diving industry which earns lots of returns.

The turtle will dig a pit in the sand (see picture at left) and the sun’s heat energy retained by the sand even at night acts as natural incubator to create new turtles which will scramble to the sea and remember the beach that they were born and return years later to procreate more turtles.

This is the biological law and instinct that governs the life cycle of sea turtles.

Give them an artificial beach, it would be like homeward memory deleted.

Whether the drafters of Section 26(1)(2) knew it or not, we have a law which protects the natural beaches of Sabah which are utterly vital to our sea turtle reproduction.

Pollution argument valid?

A favourite justification of burying the Tanjung Aru beach is pollution. But which beach in Sabah is not polluted nowadays?

So, if the pollution argument is valid, then even the beaches of Selingan and Libaran may have to be reclaimed because loads of rubbish float in daily from an open sea!

Retention of beach politically popular

Also many feelers indicate u-turns from elected reps are politically damaging to trust.

So, Chief Minister Datuk Seri Shafie Apdal’s idea to downsize the project, such as retaining the beach or retain at least Beach 1 and Beach 2, looks like the best bet.

Also, if one visits the beach nowadays, every evening is jammed with hundreds of Chinese and Korean tourists to see the sunset.

I asked two Korean girls what they thought of the sunset, one said “wonderful”, another said “beautiful!”