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Land Law Should Honor Native Claims: Malaysian Activists

Labid Balang and Colin Forsythe
Kuching, Sarawak and Kota Kinabalu, Sabah
2017-09-04
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Gimbun Pandikar, a bobohizan or high priest of the Rumanau River tribe in Keningau, Sabah seeks blessings at an "oath stone" while observing the World Indigenous People's Day 2017, Aug. 9, 2017.
Gimbun Pandikar, a bobohizan or high priest of the Rumanau River tribe in Keningau, Sabah seeks blessings at an "oath stone" while observing the World Indigenous People's Day 2017, Aug. 9, 2017.
Colin Forsythe/BenarNews

Updated at 12:50 p.m. ET on 2017-09-13

The Sarawak government is studying longstanding demands to expand native land rights in the east Malaysian state, where vast tracts of rainforest have been turned into pulpwood and oil palm plantations.

The move follows last year’s controversial court ruling that customary rights of the tribes people of Sarawak, Malaysia’s largest state, apply only to their farmland and not to primary forest areas around their traditional longhouses where they forage for food.

Indigenous people, collectively known as Dayak, claim that for generations their communities have held customary rights to the primary forests around their homes.

The Dayaks – who make up about 40 percent of the resource-rich state’s 2.7 million people – have filed hundreds of lawsuits against the state alleging that it issued leases and permits to companies on land that belongs to them.

Sarawak Deputy Chief Minister Douglas Uggah is expected to come out with a recommendation “soon” to help resolve the controversy over native lands, according to the Borneo Post.

He heads a committee set up after the court ruling to look into the possibility of amending state lands laws to overcome the issue facing the Dayaks.

“Suffice for me to say, they have made good recommendations and were given three weeks to refine it,” Uggah told BenarNews earlier this month, referring to his committee members.

He did not elaborate.

‘Fabulously wealthy’

Under its 1958 Land Code, Malaysia recognizes native ownership of lands classified as native land before that date, or gazetted as such since that date by state governments.

Sarawak, which joined Malaysia in 1963 upon gaining independence from Britain, acknowledges that indigenous peoples have Native Customary Rights (NCR) to land they farm or cultivate, known in tribal customary law as “termuda.”

But indigenous groups in the state on Borneo island argue that they should be considered owners of land needed for communal use (“pulau galau”) or used for hunting and foraging (“pemakai menoa”).

In December 2016, a Malaysian Federal Court ruled that these native land titles do not have force of law. Another court ruling in March 2017 held that tribal people who resettled in villages decades ago no longer have rights over land they had abandoned.

“The rule-of-thumb used by the state is that if the land is not NCR land, then the land belongs to the state,” academic James Chin, of Tasmania University in Australia, wrote in a recent article in New Mandala.

“Timber and plantation barons, often the same person, are quite happy to pay millions” to get permits to use the land – which has made a small number of people “fabulously wealthy,” Chin wrote.

“What makes the situation worse is that the NCR claimants are not informed about the lease and only find out when the lease holders show up with their machines,” he said.

Legal framework

Only a change in policy will prevent this, Malaysia Human Right Commission (Suhakam) member Francis Johen told BenarNews.

“This is why the land policy needs to be amended to include both of these customs,” he said.

Suhakam, he said, had been highlighting this issue for quite some time and it was included as one of the recommendations in the National Inquiry into the Land Rights of Indigenous Peoples conducted in 2010-2012.

“This has become an issue among native communities here and if you look into the native customs, the scope is wider when compared to the provisions in the land code. So native land could not be treated with a blanket understanding,” Francis added.

Dayak National Congress president Paul Raja urged the state government to recognize the legal framework for both customary lands.

“Native land disputes can be reduced or completely settled once a legal frame work is recognized,” said Paul, who is also a land rights lawyer.

Paul also said some of the land issued with provisional leases by the government to land developers for either timber extraction or plantation purposes, encroaches the boundaries of these disputed native lands.

“This is where problem starts and most of the cases have similar pattern. That is why a legal framework is needed,” Paul said.

A deadly business

Sarawak is described by scientists and activists as a global hotspot of forest loss and degradation. Malaysia is the world’s second biggest producer of palm oil, after Indonesia.

Satellite images show that approximately 10 percent of Sarawak’s primary forests are still intact, according to the Bruno Manser Fonds, a Swiss environmental group.

“Nearly 80 percent of the land surface of Sabah and Sarawak was impacted by previously undocumented, high-impact logging or clearing operations from 1990 to 2009,” a group of Australian scientists wrote in a 2013 paper, “Extreme Differences in Forest Degradation in Borneo: Comparing Practices in Sarawak, Sabah and Brunei.”

Campaigning for native land rights in Sarawak can be a deadly business. Swiss rainforest campaigner Bruno Manser, who lived with the Penan people of Sarawak for six years and helped them mount road blockades to protest logging in their area, disappeared in Sarawak in 2000 and is presumed dead – his supporters believe, from foul play.

Last year, Sarawak land rights activist Bill Kayong, 43, a Dayak who assisted communities facing land grabs in courts, was shot dead in Miri city as he drove to work. Kayong was also a prominent member of the local branch of the opposition People’s Justice Party (PKR).

Three men charged in Kayong’s murder, including a man linked to an oil palm company locked in a dispute with a tribal group, were acquitted in June by a judge in Miri who cited lack of evidence. The acquittal is being appealed.

A fourth man, a bouncer who allegedly pulled the trigger, still faces prosecution.

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Sarawak Bidayuh villagers from the Padawan Highlands, famed for their brass armbands, work on a mountain paddy field at the break of dawn, June 2016. [Labid Balang/BenarNews]

In an earlier version, the caption for the main photo gave wrong information to describe what was happening in it.

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