NOVEMBER 2 — Sarawak reportedly would push for greater control of its strategic resources, including the oil and gas industry.

Citing the takeover of Bintulu port, Premier Abang Johari Openg said there were many more assets that Sarawak intended to take over.

Such moves, however, would require the backing of the Sarawakians.

“The more Sarawakians stand behind us and our leadership, the more determined we will be to continue fighting for Sarawak,” Abang Johari was quoted as saying.

Ports are a state matter. They are listed as Item 3 under List IIA (Supplement to State List for States of Sabah and Sarawak) pursuant to Article 95B(1)(a) of the Federal Constitution. Item 3 reads as follows:

“Ports and harbours, other than those declared to be federal by or under federal law; regulation of traffic by water in ports and harbours or on rivers wholly within the State, except traffic in federal ports or harbours; foreshores.”

Accordingly, Sarawak has every right to push for greater control of its strategic resources like the takeover of Bintulu port.

But oil and gas?

In the case of Home Affairs, Malaysia & Ors v Datuk James Wong Kim Min [1976] the Federal Court unanimously held that internal security, which is clearly enumerated as Item 3 in the Federal List in the Ninth Schedule to the Federal Constitution, is a federal subject. This means that both legislative and executive authority over internal security is vested in the Federation and the Sarawak legislature, in particular, no longer has power to make law on it.

Now, the Federal List includes Item 8(j) – that is, “subject to Item 2(c) in the State List: Development of mineral resources; mines mining mineral and mineral ores; oils and oilfields; purchase, sale, import and export of minerals and mineral ores; petroleum products; and regulation of labour and safety of mines and oilfields”.

Item 8(j) does look more elaborate than Item 2(c) in the State List, which lists “permits and licences for prospecting for mines; mining leases and certificates” as state matters.

The Federal Constitution, by the Legislative Lists (Federal, State and Concurrent), demarcates federal and state powers.

So, which has the rights over oil and gas?

The Federal Court has been called to rule on the matter.

So, let the Federal Court decide whether the rights are with federal or state governments.

Malaysia is not unique to conflicts between federal and state governments.

I have shared the Australian experience.

Australia is a federation, like Malaysia.

So is Canada, where a number of cases have come before the country’s apex court, the Supreme Court, for determination whether a matter was within federal or state powers.

For example, in 2019, the Canadian Federal Parliament passed an unprecedented legislation – that is, the Act Respecting First Nations, Inuit and Métis Children, Youth and Families.

It is unprecedented because for the first time, the federal government has exercised its jurisdiction to legislate in the area of Indigenous child welfare.

The passing of the Act is said to be in keeping with Canada’s commitments relating to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which has been incorporated into the country’s domestic law, and in response to the calls to action made by the Truth and Reconciliation Commission of Canada.

The Act establishes national standards and provides Indigenous peoples with effective control over their children’s welfare. In Sections 9 to 17, it sets out national standards and principles, which establish a normative framework for the provision of culturally appropriate child and family services that applies across the country.

In Section 8(a) and 18(1), the Act affirms that the inherent right of self‑government recognised and affirmed by Section 35 of the Canadian Constitution includes legislative authority in relation to Indigenous child and family services.

The Act also establishes a framework within which Indigenous groups, communities or peoples may exercise the jurisdiction affirmed in both provisions. It also specifies how its provisions and the jurisdiction it affirms will interact with other laws.

Section 21 of the Act incorporates by reference the laws made by Indigenous groups, communities or peoples and gives them the force of law as federal law.

Section 22(3), in turn, provides for greater certainty that the laws of Indigenous groups, communities or peoples prevail over provincial laws to the extent of any conflict or inconsistency.

Despite the nobleness of the Act, the Attorney General of Quebec (the largest province in Canada by area), referred the question of its constitutional validity to the Quebec Court of Appeal, asking whether the Act is ultra vires Parliament’s jurisdiction under the Canadian Constitution.

The Court of Appeal held that the Act is constitutionally valid except for Sections 21 and 22(3), being provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws.

In the Court’s view, these provisions exceed federal Parliament’s jurisdiction.

The Attorney General of Quebec appealed against the Court of Appeal’s decision. The Attorney General of Canada, in turn, cross-appealed against the decision that Sections 21 and 23(3) are unconstitutional.

After hearing the parties, the Supreme Court dismissed the appeal of the Attorney General of Quebec and allowed the appeal of the Attorney General of Canada.

The Supreme Court ruled that the Act as a whole is constitutionally valid as the essential matter addressed by the Act involves protecting the well‑being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and advancing the process of reconciliation with Indigenous peoples.

The Act therefore falls squarely within federal jurisdiction under Section 91(24) of the Canadian Constitution – that is, matters over “Indians, and Lands reserved for the Indians”. The measures in the Act are all measures that are within Parliament’s powers under the provision.

The Supreme Court, as such, affirmed the federal Parliament’s “independent legislative authority” to enact such a law pursuant to its jurisdiction over Indians and lands reserved for the Indians under Section 91(24) of the Canadian Constitution. (See the case of Reference re An Act respecting First Nations, Inuit and Métis children, youth and families [2024] SCC 5)

The decision also affirmed the doctrine of federal paramountcy, under which the provisions of a valid federal law prevail over conflicting or inconsistent provisions of a provincial law.

In Malaysia, the doctrine is encapsulated in Article 75 of the Federal Constitution that says if any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

So, on oil and gas, let the Federal Court decide whether the rights are with federal or state governments, and whose rights prevail.

* This is the personal opinion of the writers or publication and does not necessarily represent the views of Malay Mail.