In a move to strengthen environmental and human rights, the Malaysian government is planning to introduce new laws that would require companies and state authorities to secure the full consent of local communities before proceeding with new developments such as renewable energy projects.
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In a draft national action plan on business and human rights published earlier this month, the legal affairs division of the Malaysian prime minister’s department said that it plans to develop a national guideline on free prior and informed consent (FPIC) and enact legislation to standardise FPIC at the national level. The timeline for the draft national action plan, which is the first of its kind in Malaysia, is from 2025 to 2030.
“The government can start with designing a robust FPIC framework, developed in collaboration with communities and state authorities, to be piloted at the state level,” said the draft.
It also proposed the development of a voluntary community protocol or native engagement plan on FPIC, which would be based on international best practices and aligned with current legislative and policy frameworks in Malaysia.
A lack of robust FPIC practices has been a source of concern and criticism of renewable energy and carbon projects developed in Malaysia and beyond, such as large hydropower dams and forest-based carbon projects in Sarawak, as well as the expansion of sugarcane and palm oil plantation estates in Indonesia.
Local and Indigenous communities have said that discussions over such projects often take place at a high level, leaving them out of the conversation. Ita Bah Nan, deputy secretary-general of the Orang Asal Women’s Association of Malaysia, an Indigenous group, said that while policymakers typically meet in Kuala Lumpur or in Malaysia’s administrative capital of Putrajaya, most of the country’s Indigenous peoples live deep in the jungle or in other remote areas.
“I’m from Perak and it takes me three to four hours to travel (to Kuala Lumpur), plus I have to cover the costs of travel and the tolls, and sometimes I get lost in the city,” she said at the recent launch of a report on Malaysia’s just energy transition with business and human rights principles. “Who’s going to invite us [to attend these meetings]?”
Ita acknowledged that renewable energy projects are necessary as part of the clean energy transition, but stressed that Indigenous peoples still lack sufficient information about these projects.
“Even today, when you ask the community what ‘renewable energy’ means, they still don’t know,” she said. “I personally think we can’t avoid renewable energy projects but we must ensure that there is no harm to the Indigenous communities, whether in terms of our land rights or the projects that will impact our livelihoods,” she said.
Ita Bah Nan, deputy secretary-general of the Orang Asal Women’s Association of Malaysia, said that high-level policy discussions on the energy transition often happen in the capital city and are inaccessible to Indigenous people living in remote areas. Image: Klima Action Malaysia
The report, published by youth-led climate justice group Klima Action Malaysia (KAMY), found a lack of FPIC considerations in Malaysia’s current energy transition frameworks. There are no requirements for securing local community consent as part of the government’s budget of RM305.9 million (US$69.02 million) allocated for renewable energy under the National Energy Transition Facility Fund, nor are rights to consent protected under clean energy incentives by financial institutions, such as the central bank’s RM600 million (US$135.12 million) Low Carbon Transition Facility.
“Without FPIC, these initiatives risk excluding Indigenous Peoples from meaningful participation, perpetuating displacement and marginalisation,” the report said. “Integrating FPIC into these allocations is essential to align Malaysia’s energy transition with international human rights standards, ensuring inclusivity and equity.”
Ita said that in addition to FPIC requirements, training should also be conducted to provide Indigenous and local communities with more information about renewable energy and carbon capture projects. “This is also how the government can build relationships and trust with local communities,” she said.
The government’s draft action plan acknowledges the need for new laws to address FPIC, stating, “regulatory developments should consistently and comprehensively centre communities in order to reflect human rights-based approaches.”
It said that the government plans to legally recognise the position of Malaysia’s Indigenous peoples as rights holders, in line with the United Nations’ Declaration on the Rights of Indigenous Peoples.
No more SLAPPs
The draft also highlighted that the proposed FPIC guidelines must include access to justice and remedies. “A proposed guideline on FPIC must clearly and expressly stipulate access to grievance mechanisms and remediation, as well as financial aid to communities who seek judicial redress,” it said.
It also said that FPIC requirements must be supported by anti-SLAPP legislation, which if breached signals a clear violation of FPIC principles. SLAPPs are strategic lawsuits against public participation (SLAPPs), which are typically used to silence or intimidate critics of companies or authorities through expensive litigation.
“This legislation should aim to prevent companies or other powerful entities from using frivolous lawsuits as a tool to suppress free speech or discourage public participation in matters of significant public interest,” it said.
SLAPPs have been used across Southeast Asia in an attempt to silence environmental advocates and journalists. In Malaysia, timber giant Samling withdrew its lawsuit against non-profit environmental group Save Rivers for alleged defamation in 2023 following international condemnation of the case as a SLAPP.
Another measure proposed by the draft action plan is for the burden of proof for the ownership of native ancestral lands to be reversed, from Indigenous peoples to the state and businesses.
“This is in line with the constitutional right to provide protections under native customary rights by shifting the burden to parties intending to displace or harm Indigenous communities,” it said.
In the meantime, businesses “need not wait for legislation to be enacted or amended before taking meaningful steps to cultivate a respect for human rights,” the draft said. It recommended that businesses meaningfully include Indigenous communities in the FPIC process by consulting and partnering with them on the due diligence process.
“Companies should actively seek their comments and verify results from due diligence and impact assessments, incorporate community-level information pathways, work in partnership with Indigenous civil society organisations and provide communities a platform and the authority to influence corporate decisions,” it said. “Special attention should be given to Indigenous women, youth and children.”
Businesses should also do their part in establishing grievance mechanisms that are accessible to all stakeholders, especially environmental human rights defenders and Indigenous peoples. These mechanisms must also be accountable, transparent, adaptive and proactive.
“A meaningful business and human rights framework is one that is grounded in the explicit recognition and respect for the rights of environmental human rights defenders and Indigenous peoples,” it said.
