Sarawak’s claim to
extended boundaries
wrong in law, says Zaid
Former law minister Zaid Ibrahim says Sarawak has mistaken its right to ‘exploit’ the continental shelf with the ‘geological concept of territorial limits’.
“Why is Sarawak only now challenging the legality and constitutionality of laws which were put in place shortly after the formation of Malaysia? Surely our founding fathers knew fully well what they were doing,” he told FMT.
Speaking in his personal capacity, Zaid said Sarawak appears to have misunderstood the difference between “exploitability” and “the geological concept of a state’s territorial limits”.
“Those two concepts cannot be conflated,” he told FMT.
He said “exploitability” refers to a state’s right to utilise and extract resources from a specific maritime area, such as the continental shelf.
“The Sarawak (Alteration of Boundaries) Order in Council 1954 and the Geneva Convention on the Law of the Sea 1958 dealt with where and what could be mined, which is known as ‘exploitability’.
It did not deal with what was or was not part of Sarawak, which we refer to as the ‘territorial limits’,” said Zaid.
He said issues surrounding the territorial limits of states were only dealt with in the 1982 United Nations Convention on the Law of the Sea (Unclos).
Likewise, Zaid said the mining lease granted by the state to the Sarawak Oilfield Limited in 1952 merely gave the corporation an “exploitation right”.
“At the time, the scope of offshore exploitability was much narrower, and was limited by technology to a depth of 200m in waters close to the shore.
“Sarawak extended the mining lease in 1956 after the 1954 Order in Council granted Sarawak the right to exploit the continental shelf. The Oil Mining Ordinance 1958 (OMO) then formalised Sarawak’s right to exploit these resources,” he said.
Zaid said shortly after Malaysia was formed, the Petroleum Mining Act 1966 was passed to deal with the exploitation of offshore resources on a national scale.
“Section 13(a) expressly repealed the OMO as regards the state’s right to explore, prospect and mine for petroleum offshore. The Petroleum Development Act 1974 (PDA) then nationalised the exploitation of onshore resources,” he said.
“None of this had anything to do with territorial limits,” said Zaid.
On Nov 15, Satok assemblyman Ibrahim Baki told the Sarawak legislature that the state had entered a mining lease with Sarawak Oilfields Limited in 1952.
He claimed that following the 1954 Order in Council, which extended Sarawak’s boundaries, the state extended the lease to cover the continental shelf comprising the seabed and subsoil under the high seas adjacent to its territorial waters.
He said the state then formalised control over all resources in the continental shelf by passing the OMO in 1958.
Ibrahim also claimed that the OMO continues to be in force to the present day.
“Although Section 2 of the PDA purports to vest petroleum in Petronas, the PDA did not repeal the OMO and did not exempt Petronas from complying with constitutionally valid state law,” Ibrahim was quoted by Dayak Daily as saying.
Citing Section 8 of the PDA, he said the only law Petronas was exempted from complying with was the PMA.
“If Parliament had intended Petronas to be exempted from any other law, whether state or federal, whether in regard to its upstream businesses or activities, Parliament would have spelt out such exemption in the PDA,” he said.
On Thursday, Sarawak premier Abang Johari Openg doubled down on Ibrahim’s contentions, insisting that the OMO remains valid and in force and that any entity engaging in resource exploration and extraction must adhere to it.
Zaid, however, described these claims and assertions as “misguided and disingenuous”.
“The offshore effect of the OMO was repealed by the PMA and the onshore effect had been appropriated for consideration under the PDA. There was nothing left to repeal. The legal position on this issue is as clear as daylight. It could not have dawned upon anyone only now,” he said.
Zaid said he hopes his explanation will help Sarawak and Petronas resolve their differences amicably for the sake of the nation as a whole.
Under the PDA, Petronas has ownership of all oil and gas throughout the country, including in Sarawak.
However, the Sarawak government has recently sought greater control over resources within the state through state-owned oil company, Petroleum Sarawak Berhad (Petros).
EEZ is not the same as sovereign territorial seas.
ReplyDeleteChina makes the same false claims.