Legal precisions and misconceptions of Indigenous Customary Land Rights
Sahabat Alam Malaysia (SAM) would like to express its gravest concern over recent announcements made by the Sarawak State Government on its intention to double plantation areas in the state to two million hectares in the next ten years.
Closely linked to this plan is the Sarawak State Government’s self-estimation that there exist some 1.5 million hectares of native customary rights (NCR) land in the state, “mostly under-utilised and without titles, and that the Sarawak government had identified several large tracts of state land for plantation projects.” On Dec 11, 2010, the Sarawak Chief Minister himself reportedly stated to the media that it was possible to develop more new oil palm estates in the hundreds of thousands of hectares, “pending the settlement and issuance of more NCR titles”.
The controversies surrounding oil palm estate development in the state therefore was attributed to the “the lack of precision in old methods of land ownership” and “is not a question of the law but the lack of precision in the old style of owning land when converting into modern land laws.” Apparently, this old style of land ownership “was based on marks between one rock and another rock, or between one tree and another tree” and that for decades the state “has been ‘forced’ to overcome such matters in courts.”
In view of such plans and statements, we would like to draw the attention of the Sarawak State Government to some pertinent issues that need serious re-examinations.
Firstly, following the various judicial rulings in our country in recent years on the legal concepts and principles of the indigenous customary land rights and the indigenous land title, SAM has become acutely alarmed by particular legal assertions of our executive authorities on the nature, stature and extent of such rights.
Some of these assertions, as articulated by the Federal Government in 2008 during the multi-stakeholder consultations of the Forest Law Enforcement Governance and Trade -Voluntary Partnership Agreement (FLEGT-VPA), the proposed bilateral agreement between Malaysia and the European Union which aims to ensure the legality of Malaysian timber entering the EU market, tend to be in conflict with these judicial decisions. Meanwhile, other executive legal perceptions continue to simplify and misplace the contexts of these NCR ‘controversies’.
It is highly erroneous for us to reduce the continuous customary land rights contentions in Sarawak to an issue revolving around the lack of boundary precision amongst native villages. These ‘controversies’, whether against logging activities or the development of oil palm estates, are in fact inherently related to the question of law.
The traditional territories of the Sarawak native villages are not simplistically demarcated by marks between rocks or trees but most often than not by naturally-occurring geographical landmarks such as rivers, streams and mountain ranges, as with the land boundaries of many a modern nation state. There is nothing imprecise about such territorial boundaries. Whether the entire communal territories (tanah pemakai menoa) themselves or the village forest reserve (pulau galau) or the family farms (temuda) within these territories, no land owner can afford to be ambiguous over the extent of their rights, not especially when there are adjacent land rights claimants around.
In 2007, our Federal Court has affirmed the principle that the common law respects the pre-existence of such rights under native laws and customs – native rights have been ruled to owe their existence to native customary laws and not to any statute or legislation. The native title has also been judicially described as a right acquired in law and not based on any document of title; a right that does not depend on any legislative, executive or judicial declarations; and a right that is not lost by colonisation. Our judiciary has also further affirmed that although such rights are usufructuary in nature, they are also bestowed with proprietary interests. Usufructuary privileges indicate that the people are allowed to exercise such rights on any class of Stateland. Proprietary interests of our citizens meanwhile are firmly protected under our Federal Constitution, the supreme law of the land. Such rights then shall continue to exist until and unless they have been extinguished in clear and unambiguous terms in accordance with the law.
Thus within the modern Malaysian legal framework, the legal recognition and protection of such rights has indeed been very precise.
This question of law becomes even more urgent when current governance conditions seem to permit the issuance of logging and plantation concessions within such territories or the extinguishment of such rights for the establishment of production or conservation forests, without the people’s free, prior and informed consent.
Last but not least, for over three decades SAM has consistently voiced its concerns on the lack of transparency, sustainability and equity in forestry governance in Sarawak. Without transparency, development plans can neither be sustainable nor equitable.
Today, only after a mere three decades of logging, even some of the Environmental Impact Assessment (EIA) reports of plantation projects in Sarawak have implied that timber resources in the state are facing a decline, giving rise to the ‘need’ of establishing timber plantations, some of which are allowed to grow oil palm for a single cycle of 25 years, under the authority of the Sarawak Forests Department.
During the same period of time, logging-affected communities have suffered tremendously – the majority have remained poor, living with limited access to clean water, electricity, transportation, education and healthcare. Why then should our native land owners be further reduced to labourers and workers on their own ancestral territories? In any case, many of these job opportunities at Sarawak plantation estates seem to have gone to migrant labour.
Therefore, before embarking on such plans, it is highly advisable for the Sarawak State Government to first re-examine the policy and statutory framework of the existing governance system in the state. Sarawak urgently needs to institute reforms with regards to its natural resource-related policies and statutes so as to ensure that they are perfectly-aligned with recent judicial descriptions of the NCR. Likewise, the registration of native titles will only perpetuate further ‘controversies’ if the process fails to observe these judicial rulings, lacks a genuinely participatory and consultative joint-boundary demarcation process and is undertaken with the primary intention of converting registered native titled areas into corporate monoculture estates, without adequate safeguard mechanisms on community consent and rights protection.
Press Statement, 17 December 2010