|
|
| Faculty of Law | National University of Singapore | |
|
APCEL Report : Brunei Back to : Index : ASEAN Project : Brunei
PRELIMINARY ASSESSMENT
OF Negara Brunei Darussalam (Brunei) is a small country on the north-western coast of the island of Borneo. It occupies a land area of 5,270 square kilometres, with a coastline 161 kilometres in length. The country is separated into two parts by the Malaysian territory of Limbang in Sarawak state. Brunei has a small population of only 307,616 (July 1997 estimate), and is administratively divided into 4 daerah (districts) - Brunei/Muara, Kuala Belait, Temburong and Tutong. These districts are further subdivided into mukim (subdistricts). The largest city is the capital, Bandar Seri Begawan (population 200,000). The economy is dominated by oil and natural gas exploitation, and the wealth arising from the oil industry gives Brunei a high per capita gross domestic product of US$15,800 (1995 estimate). The main exports are crude oil, natural gas and petroleum products derived from oil and gas refining. The largest oil company is the Brunei Shell Petroleum Company Sdn. Bhd. (BSP), a joint venture between the Shell Oil Company and the Government of Brunei. In recent years, the government has adopted strategies to diversify its economy. Light industry, services and tourism are now being encouraged to reduce Brunei’s dependence on oil exports. With its small population, Brunei does not yet suffer serious land use and environmental pressures. Over 85 percent of the population live in the coastal areas, where almost all social and economic activities are concentrated. In the Brunei Bay area where Bandar Seri Begawan is located, the government has undertaken concerted pollution control efforts directed at effluent discharges from the capital and its suburbs. This preemptive action is being taken to avoid damage to the environment as the country embarks on urbanisation and industrialisation. The oil industry is well regulated by the government and the Shell group of companies, and the latter employs high standards of precaution in preventing environmental pollution arising from oil exploration and refining. The non-oil natural resources of Brunei are largely unexploited. Tropical forests cover about 75 percent of the total land area. Logging as an industry and export-earner has been stopped, and the remaining rainforests are protected by law. There is a significant representation of indigenous flora and flora, including the rare proboscis (long-nosed) monkey, which is found only on Borneo island. Agriculture is carried out on a small scale, and revolves primarily around the cultivation of rubber, vegetables and fruits in outlying areas. The coastal area contains Brunei’s most productive ecosystems and its most valuable onshore and offshore hydrocarbon deposits. The non-oil coastal resources are lightly exploited. The 18,418 hectares (3.2 percent of total land area) of mangroves in Brunei are amongst the best preserved in Southeast Asia. These mangroves play a significant role as hatcheries and nurseries of marine life, and form habitats for several species of plants and animals, some of which are unique and endangered. Much of the existing mangroves have been allocated for specific purposes like protected forest areas, water pond aquaculture (particularly for shrimp culture) and human settlement projects. In recent months, severe air pollution arising from forest fires in neighbouring Indonesia and Malaysia has affected Brunei. Large areas of the country, including Bandar Seri Begawan, have been blanketed with thick smog, forcing the government to close schools. Apart from hampering the fire-fighting effort, the prolonged dry period has also caused water shortage problems in Brunei. The Bruneian authorities are currently working closely with their ASEAN and foreign counterparts to find a solution to the ongoing problems.
Brunei is a Malay Islamic Sultanate, and the Head of State and Head of Government is His Majesty Sultan Haji Hassanal Bolkiah, Sultan and Yang Di-Pertuan of Brunei. A former British protectorate, Brunei became fully independent in 1984 and joined the Association of Southeast Asian Nations (ASEAN) in the same year. The Sultan appoints the Ministers in the Council of Cabinet, which exercises executive powers. There is a unicameral Legislative Council which has a consultative role, and its members are also appointed by the Sultan.
2.2 Environmental Institutions There is no single Ministry or Department in Brunei which is specifically responsible for environmental matters. Responsibility for environmental management is fragmented amongst several ministries, departments and units according to the sector concerned. Thus, for example, sectoral responsibility over forestry and fisheries management resides with the Forestry and Fisheries Departments respectively. These are both departments within the Ministry of Industry and Primary Resources. The following is the division of administrative competences over the environment:
The NCE is tasked with coordinating the environmental functions and sectoral interests of the relevant agencies within and outside the government. It ensures general coordination of environmental policy-making, provides an overall framework for environmental management, and oversees the implementation of national environmental activities, legislation and policies pertaining to the environment. The Environment Unit of the Ministry of Development serves as the full-time Secretariat to the NCE. This Unit is also involved in policy development and guidance, and is responsible for regional and international environmental relations and for promoting environmental awareness in Brunei. In effect, the Environment Unit serves as the institution with direct operational competence over environmental matters. In 1994, the NCE established two working groups on specific environmental issues. These working groups consist of members from both the public and private sectors. The Solid Waste Management Working Group aims to establish a solid waste management strategy that will respond to all forms of wastes, including industrial, commercial and domestic wastes, sewage sludge, hazardous wastes and clinical wastes. The Group is also tasked with formulating the necessary legal framework and enforcement system to regulate the production of these wastes as well as to stimulate greater participation on the part of the private sector in establishing waste management facilities. The Water Resources Management Working Group aims to establish environmental quality objectives, corresponding standards and monitoring requirements as well as a harmonised legal framework for water resource management in Brunei. It is tasked with formulating a plan of action to mitigate adverse effects on Brunei’s water resources (present and future), with particular emphasis on raw sewerage discharge, silt from land clearance, oily wastes from workshops and filling stations, livestock and chemical wastes from agricultural development and discharges from industrial development and domestic point sources.
3. NON-GOVERNMENTAL ORGANISATIONS
No environmental non-governmental organisations (NGOs) currently exist in Brunei. The small population and relatively efficient administrative machinery allow aggrieved members of the public to complain directly to the relevant government authority. Therefore, some Bruneian officials feel that there is no need for environmental NGOs. The dominance of the oil industry in Brunei has led to the Brunei Shell Petroleum Company (BSP) assuming a great role in environmental matters, particularly in relation to preventing pollution by oil. Specifically, BSP has formulated its own Environmental Management Plan. This plan includes practices, procedures and standards pertaining to air quality, water quality and waste management. The plan also includes monitoring programmes, EIA procedures and environmental audits. BSP also has its own procedure for the management of toxic chemicals and hazardous wastes. In addition, BSP has also supported numerous nature conservation activities, including sponsoring a research centre known as the Kuala Belalong Rain Forest Field Studies Centre. The Centre specialises in the study of unique species of fauna and flora in the nearby Belalong National Park, an area of tropical rain forest that has been set aside for preservation. BSP has also launched a "Rigs to Reefs" project in 1988 which has produced encouraging results. The Universiti Brunei Darussalam is also collaborating in an ASEAN-Australia Coastal Zone Environment Resource Management Project (AAECP). The project, in its third phase, is currently studying the water quality of Brunei Bay adjacent to Bandar Seri Begawan.
4. ENVIRONMENTAL LEGISLATION IN BRUNEI
Whilst reflecting aspects of Islamic law, the Bruneian legal system is also very much influenced by the British legal tradition. The main laws take the form of Acts, and subsidiary legislation in the form of regulations are often enacted pursuant to the parent Acts. Many policies are usually promulgated in the form of administrative orders. Several of the Acts were enacted in British colonial times, and continue to be in force today.
4.2 Framework Laws and Provisions Brunei has no framework or umbrella legislation on the environment. Matters pertaining to the environment are regulated by existing sectoral laws governing the various economic activities. The most important laws are listed in the Appendix. Under the Seventh National Development Plan (1996-2000), the NCE has been engaged in formulating environmental policy objectives and strategies, with the assistance of the Environment Unit of the Ministry of Development. The environmental policy objectives are the sustainable utilisation of natural resources, the minimisation of negative impacts on the environment arising from population growth and human settlement, and the balancing of socio-economic development with a quality environment. Some of the strategies identified to achieve these objectives include the integration of environmental considerations into economic planning, the improvement of environmental education and the protection of coastal and marine resources. The Forestry Department of the Ministry of Industry and Primary Resources has also formulated a broad-based policy known as the National Forestry Policy. The Policy sets out the government’s determination to pursue sustainable utilisation and management of its forest resources consistent with global strategies on bioecology.
5. PROBLEMS IN IMPLEMENTING ENVIRONMENTAL LEGISLATION Despite the relatively small government machinery and the efforts of the NCE to coordinate inter-agency activities, problems still exist in relation to institutional arrangements. Chief amongst these are problems in communication and cooperation between Ministries and Departments, overlapping jurisdiction amongst these, and the lack of manpower, especially environmental and technical experts. In the course of their work, the activities of the relevant sectoral ministries and departments often reflect developmental priorities, and thus environmental considerations can be neglected. As a result, there often arise differing standards in quality control between Ministries/Departments, different levels in enforcement, duplication of manpower and budgetary resources and ineffective monitoring of industrial projects and potential illegal activities. There is also insufficient awareness amongst planners in government agencies as to the interplay between industry and environmental issues.
As a general rule, environmental policies are usually promulgated as administrative orders. These, along with many of the existing laws, tend to be brief and general. Many of the environmental regulations appear as incidental provisions in sectoral legislation governing other areas. No single coherent Act exists to harmonise the environmental protection effort. As such, the provisions governing pollution and the environment are incomplete and piecemeal, and laws governing some types of pollution are non-existent. Many of the existing provisions also grant wide powers and authority to ministries and departments, leaving many issues to be determined at the discretion of administrators. In addition, most of the existing environmental laws pre-date the current interest in environmental protection and have not yet been amended to incorporate modern environmental principles. One example of inadequacies in the legislative framework relates to water pollution. At least ten separate laws contain provisions relating to water pollution. All of these laws, except the Penal Code and the Minor Offences Act, provide administrators with varying degrees of authority to issue regulations touching on water quality. However, none of the laws address the protection of water quality in a specific and coherent manner, and no legally enforceable discharge standards have been promulgated under any of these laws. Similarly, there exist no specific laws to regulate air quality, noise pollution or vibrations. There are some brief provisions in the Minor Offences Act, Penal Code, Ports Act, Road Traffic Act and Air Navigation Act that deal with air and noise pollution, but these are largely lacking in detail. Fortunately, air and noise pollution from vehicles are not currently serious problems in Brunei due to the relatively small number of vehicles. In addition, the sulphur content of gasoline and diesel fuels used in Brunei is relatively low, and unleaded gasoline has been in use since 1993. Brunei has no specific laws which deal with hazardous wastes. Neither are there facilities to treat and manage hazardous wastes. The only relevant legislative provisions are the Customs Act which regulates the handling of dangerous substances, including petroleum, and the Ports Act which regulates the transport of dangerous goods within the port area. Industrial pollution from other industries is generally controlled by the requirement that all pollutive industries adopt clean technology. The amount of pollution from such sources, however, is small and localised. Another problem with Brunei’s existing system is that the provisions governing the prosecution of environmental violations are somewhat vague, and the role of the Public Prosecutor is not well defined. Often, the provisions of general legislation like the Penal Code, Criminal Procedure Code and Minor Offences Act are resorted to, and these are usually vague with respect to environmental violations. The penalties imposed may also be inadequate to sufficiently deter potential polluters. One possible method to redress the above problems would be to enact a comprehensive framework legislation on the environment. This law could reflect contemporary concerns like hazardous waste management, economic compliance instruments and the incorporation of obligations in international treaties. The framework legislation should set out a basic framework tying together the environmental matters which are currently governed by sectoral laws, and more detailed rules on specific concerns can then be promulgated as subsidiary legislation. This may then call for the creation of a centralised coordinating institution, perhaps a separate Ministry for the Environment, to administer the environmental laws. Brunei does not have specific laws requiring mandatory environment impact assessments (EIAs) for projects. However, environmental considerations are currently incorporated into developmental decision-making through land use planning and zoning requirements. Laws such as the Town and Country Planning (Development Control) Act, the Land Code, the Municipal Boards Act and the Petroleum Act require project proponents to take into account the environmental impact of their projects. The Town and Country Planning (Development Control) Act gives the Minister of Development discretionary powers to require an impact assessment and to regulate development in areas designated as development control areas. New industries must submit plans to the Ministry of Industry and Primary Resources indicating measures to be taken to alleviate environmental impacts. In addition, whenever governmental agencies undertake major infrastructural projects, they will consider the environmental aspects of such projects as a matter of practice. Remedial measures may then be proposed to mitigate any environmental impacts. The Brunei Government also adopts the World Bank Guidelines on environmental impact assessments. Since oil exploration is a major industry in Brunei, EIA procedures for oil exploration and refining would be absolutely necessary. In this regard, Brunei Shell (BSP), as the only oil company in Brunei and in view of Shell’s international corporate responsibility, has voluntarily established environmental assessment procedures for all its new activities as of 1997. BSP’s EIA procedures are reported to be in line with the World Bank Guidelines on EIAs. In view of Brunei’s economic diversification plans, new non-oil industries are being encouraged. New infrastructural projects will also be developed in the next few years. Hence, it would be timely to improve the existing EIA procedures which are, for the most part, administered on a discretionary and ad hoc basis. For one thing, a more comprehensive EIA scheme may have to be introduced to govern industries producing hazardous substances, or having some other impact on the environment. Specific guidelines, regulations and standards would have to be enacted (and enforced) to prevent and reduce all forms of pollution and to protect the environment. Incentives may also be provided for new industries to use the best available technology to reduce and minimise pollution at the source. The existing legislative requirements for review of environmental impacts have their limitations, and may need to be reviewed. While land use and zoning requirements provide some form of planning control, the laws contain no detailed policy as to development on private land. The law is also silent as to the specific procedures to be followed in commissioning, preparing and reviewing EIAs. Although the current system for review does result in the recommendation of remedial measures for certain projects, the lack of systematic monitoring of such measures makes it difficult to assess their effectiveness. Several issues will arise in considering a more comprehensive EIA system:
Due to its small population density and almost exclusive reliance on oil exports, Brunei does not currently experience the serious environmental problems which are common in many other countries. The only major industry with the potential to cause serious pollution, the oil and gas industry, has generally demonstrated good corporate citizenship by adopting its own policies, standards and practices to prevent and control pollution. However, with increasing economic diversification, new industries with the potential to pollute the environment are being set up. To prepare for higher levels of urbanisation and industrialisation, there is a need for Brunei to strengthen its legal and institutional capacities for environmental regulation. With respect to institutional arrangements, the prevailing problem relates to the division of environmental responsibility amongst the various sectoral ministries and departments, not all of which may consider environmental protection to be a pressing concern. The establishment of the National Committee on the Environment is a good start towards increasing coordination amongst the various government ministries and departments, and towards incorporating environmental considerations into developmental decision-making. Also, the creation of an Environment Unit in the Ministry of Development is commendable. However, at present, that Unit seems to be inadequately staffed and lacking in the expertise which will be crucial for effective enforcement of environmental regulations. Steps need to be taken to bolster the capacity of the Unit, or even to upgrade its status to one of a full-fledged department or ministry. In relation to environmental legislation, the present legal regime seems obviously inadequate. Provisions relating to natural resource management and environmental protection are found in disparate pieces of legislation. A complete review of the current legislation is needed to identify existing gaps and weaknesses and to consider if a framework legislation on environmental matters is feasible. To the extent that moves are already afoot in Brunei to look into these matters, environmental protection and natural resource management issues appear to be important priorities for the near future. SELECTION OF MAJOR ENVIRONMENTAL LAWS
|
|
||||||||||||
|
About
Us | Annual Reports | Workshops | ASEAN Project Copyright © 2002. Faculty
of Law. All rights reserved. |
 |