[UPDATED] NCA ‘legally impotent’ as it is now: Sabah AG

KOTA KINABALU – The controversial Nature Conservation Agreement (NCA) inked last October is a non-binding framework agreement and is “legally impotent”, said Sabah Attorney-General (AG) Datuk Nor Asiah Mohd Yusof on the status of the carbon trade deal.

She said the NCA is not finalised and non-binding because, among others, the matter of designated areas has not been identified and ascertained.

Until it is incorporated, each and every term, condition and penalty in the proposed NCA is rendered non-binding and unenforceable, she added.

“In short, the NCA in its present form is legally impotent.”

She added that contract terms in the NCA that are unfair and absurd will be removed in the process of finalising the deal.

“The identification and obtaining free prior informed consent from all affected indigenous communities, and, finally, the identification and ascertaining of suitable and available ‘Totally Protected Areas’, which are identified as ‘Designated Areas’.”

In a statement today, Asiah also criticised inaccuracies contained in a Sarawak Report article.

“As the proposed NCA is not in force, its penalty clauses are not binding. 

“Moreover, the state government will not permit such inequitable and one-sided penalty clauses to be incorporated in the event that the NCA is finalised.

“Similarly, it shall be observed that a clause in the proposed NCA that seeks to blind the Sabah legislature in any form is void or illegal under the Contracts Act 1950.” 

In a bid to address criticism and controversies on the NCA, she said the agreement is subject to due diligence and will be carried out to the satisfaction of the state AG and the Sabah cabinet.

She added that the proposed NCA and its promoters are now being scrutinised by her office as part of the due diligence exercise.

“Unless and until Hoch Standard, its promoters and affiliates meet the requirements of the Sabah government, the proposed NCA will not proceed.

“The signed NCA is incomplete and hence, non-binding, until Hoch Standard satisfactorily meets the requirements outlined in the addendum.”

Nor Asiah said the state government has called for her office to carry out a more in-depth due diligence in the areas of financial networks and capability of the Singapore-based Hoch Standard’s funding.

She added that the state government has, in principle, approved the concept of carbon trading, and the Sabah Climate Change Committee (SCAC) established by the state will assess and advise the state cabinet on matters related to the NCA.

“The cabinet reserves its right not to finalise the NCA, and SCAC will lead a multi-party dialogue with all stakeholders where representations from across all political factions in Sabah will be called upon.”

Nor Asiah said the Sabah government’s policy on carbon trading includes the promotion of carbon sovereignty, in which the state reserves its rights and will harvest and build its expertise under the SCAC to manage carbon trading in accordance with global standards. – The Vibes, February 9, 2022