1. KEY PRINCIPLES FOR THE MALAYSIA-EU FLEGT VOLUNTARY PARTNERSHIP AGREEMENT Submission by JOANGOHutan (Jaringan Orang Asal dan NGO Tentang Isu Hutan / Network of Indigenous Peoples and Non-Governmental Organisations on Forest Issues) & Jaringan Orang Asal SeMalaysia JOAS) (The Indigenous Peoples’ Network of Malaysia) To the European Union Delegation for Forest Law Enforcement, Governance and Trade (FLEGT) JAN 2007

2. INTRODUCTION Eradication of forest management policies and practices that violate the rights of indigenous peoples and local communities. Linking the eradication of illegal logging and trade with sustainable forest management, which will take into account political, social, environmental and equity issues in decision- making processes. Shared responsibilities of both parties should incorporate well-defined commitments that are able to address the related human rights, political and environmental issues, and the introduction of necessary reforms into the Malaysian legal and governance framework for forests.

3. KEY PRINCIPLES

4. I CONSULTATIONS & ENGAGEMENTS Full and meaningful consultations and engagements with potential stakeholders and right holders, specifically environmental and social NGOs and indigenous peoples in all the related processes leading to the VPA and its implementation. JOANGOHutan have suggested ways forward for a proper consultation process in its report, “Forest Governance in Malaysia, an NGO perspective”, published in September 2006. http://www.fern.org/media/documents/document_3754_3755.pdf

5. I CONSULTATIONS & ENGAGEMENTS Openness Social and environmental stakeholders required participation in processes relevant to forest governance and trade, including the areas of legislative and governance framework, law enforcement and the management of forests. All inputs from civil society, whether in the form of written or verbal comments, recommendations or objections must be noted, responded to and incorporated into the process. Equal number of representation does not necessarily reflect equality in power. There must be steps to ensure equal sharing of power. Determination of the relevant potential stakeholders and their composition should be by consultation. Meaningful participation must go beyond noting invitations and attendance.

6. I CONSULTATIONS & ENGAGEMENTS Transparency and the free flow of information Discussions and processes related to existing legislation, law enforcement and the management of forests and their future directions, should be carried out inclusively, transparently, meaningfully and democratically. Relevant discussions and planning documents, as well as forest and plantation licenses and maps should be freely available to all concerned parties. Clear information and adequate communication on the negotiation process and the establishment and implementation of the VPA. Data and information related to license issuance and trading database, should be made easily accessible to all parties.

7. II REFORMS IN FOREST GOVERNANCE AND LEGISLATION Discussions on current weaknesses and injustices of forest governance and legislative frameworks, including flaws in forestry policy, decision-making processes, as well as management practices. Consultations to review the participatory aspects of forest governance in Malaysia, identify the shortcomings and injustices of the system, and consider the changes that can promote more just and responsible systems of forest management. Propose appropriate changes in response to all identified shortcomings, weaknesses and injustices. There must be openness to correct weaknesses, injustices and flaws in the present system.

8. II REFORMS IN FOREST GOVERNANCE AND LEGISLATION Transparency in decision-making process of the licensing of timber extraction activities Requirement for all licensing agencies to publicise information on concession areas, concessionaires and the related contractual works of all logging licences. Requirement for licensing agencies to publish information on all assessments of legal compliance, which will include a public summary. Implementation must be monitored and reviewed, and should include a complaints mechanism and be open to corrective actions, thus monitoring and evaluation of the VPA should be transparent, participatory and regular.

9. II REFORMS IN FOREST GOVERNANCE AND LEGISLATION Strengthening the recognition of Native Customary Rights Addressing the failures to respect native rights (caused by weaknesses in existing governance and legislative frameworks). In Sarawak, current framework allows for the easy termination of such rights without the free, prior and informed consent of affected peoples. Establishment of Forest Management Units or its equivalent by the VPA, even if it requires the constitution of the Permanent Forest Estate, should not result in the extinguishment of native rights. Addressing the issue of the ambiguous extent of the NCR. NCR must include both cultivation areas and the peoples’ higher forests. Preventing the issuing of logging licences over State land areas where NCR is claimed.

10. II REFORMS IN FOREST GOVERNANCE AND LEGISLATION Best practices in environmental conservation Encouraging constructive changes in governance and legislation to allow for best practices in environmental management to be implemented. The EIA process for timber extraction activities must be strengthened i.e. the inclusion of mandatory public participation. Adequate legal and governance support for the protection of rivers and water catchment areas of public urban water supplies and local communities.

11. III DEFINITION OF LEGALITY A clear and widely accepted definition of legality. Existing understanding of ‘legality’ is highly inadequate and needs to be redefined. Claim of legality by the MTCC is not adequate. There must be a transparent and participatory process to review current definition and develop an improved definition, which is linked to good forest governance and trade practices.

12. III DEFINITION OF LEGALITY Principles and criteria in the legality definition should contain basic principles of responsible forest management and recognise rights of indigenous peoples. These should be reflected in all the relevant legislation, which must be open to absorb continuous reforms and current best international practices and will spell out clear environmental and social thresholds. There should be openness for future legislative amendments as new laws and regulations are developed, e.g. the implementation of international laws relevant to forest governance and trade. Support by effective law enforcement.

13. IV SAFEGUARD MECHANISMS AGAINST ILLEGAL MIXING OF TIMBER AND TRANSBOUNDARY TIMBER MOVEMENT Addressing the issue of timber products that may contain illegal material or material illegally imported from other countries. Improving enforcement and monitoring mechanisms to deter illegal timber from being laundered in Malaysia and to prevent the country from being used as a transit point for illegal timber from neighbouring countries, before its re- exportation. Labelling schemes have proven that tracking processed timber back to its source is feasible. In this light, the process must be able to cover all timber products.

14. V GUARANTEE OF LEGALITY: PARTNER AND EU COUNTRIES Malaysia should provide the guarantee of the legality of all timber and timber products for export, in accordance to its legal licensing scheme, which should adhere to its national definitions of legality, subject to the appropriate reforms, whenever necessary. EU countries must also be able to provide a similar guarantee that the legality of all their imported timber and timber products from Malaysia are in accordance with the verification results of license/legality by independent party and by the (laws of) customs.

15. VI CERTIFICATION, VERIFICATION, MONITORING AND INDEPENDENT THIRD-PARTY ASSESSMENTS Criteria for certification, verification and monitoring activities should be part of/reflected in the negotiations mandate. The procedures established must be effective, transparent and will include civil society participation, and will be complemented by similar efforts in importing countries. A credible organisation to certify, verify and monitor the fulfilments of all the requirements of legality. The Malaysian Government should lead its establishment with continued and meaningful participation from all stakeholders. Inclusive, respected and acknowledged by all stakeholders. Transparently and inclusively established and managed. Accountable to the public. Clear procedures for any post-licensing claims, complaints. The Malaysian Timber Certification Council is not the appropriate body for this purpose.

16. VI CERTIFICATION, VERIFICATION, MONITORING AND INDEPENDENT THIRD-PARTY ASSESSMENTS To promote fair monitoring and evaluation by independent third parties, complete data and information on all the related processes and the results of the verification activities, has to be accessible to the public. This should include data and properties as well as those that involve financial transactions. Information from multi-stakeholder regional forum and other credible parties should also be considered.

17. VII REPEATABILITY, CONSISTENCY AND CORRECTIVE MECHANISMS The effectiveness of the VPA will depend greatly on its ability to maintain a high level of repeatability, consistency and a transparent complaints-and-corrective mechanism which covers the length of the entire forest management process. Coherent labelling system, including a credible chain of custody, a transparent and high quality accreditation procedure and adequate control mechanisms.

18. VIII STRENGTHENING OF ENFORCEMENT CAPACITY In order to ensure that the forestry workforce involved in the monitoring of timber extraction operations and trade, including those that involve inventory, enumeration, royalty and tax collection and enforcement operations is operating at maximum capacity, issues of their rights and welfare must be adequately addressed. These should take into account the need to: increase the size of the workforce; improve the infrastructure of monitoring facilities; and decrease the workforce’s reliance on timber companies/contractors or agents for its accommodation and travel.

19. VIII STRENGTHENING OF ENFORCEMENT CAPACITY Proposal for a monitoring system which includes independent organisations with civil society involvement to check on the proper implementation of procedures for verifying legality and illegal timber that goes undetected. These civil society monitoring organisations should also have access to data and appropriate premises.

20. IX ANTI-CORRUPTION MEASURES Creation of 'Independent and Random Monitoring Activities' teams to maintain transparency, independence and credibility of legality verification. Enhancing the capacity of civil society and community groups to carry out monitoring and verification activities.

21. X CLEAR TARGETS AND SCHEDULES The VPA must be binding for both Malaysia and the EU. Undertaken in an agreed duration of time with clear activity targets for each project/programme. The timeline should include deadlines and stages of progress by both parties to achieve just and sustainable forest governance and trade and implementation of improvements in the on-going process. Shared responsibilities and obligations and coordination of efforts and resources. Defining and achieving specific targets based on agreed- upon and feasible schedules.