Tuesday, November 11, 2008

Fight For NCR Rights

Saratok:12th November,2008

Tuai Rumah Gayan anak Tupai,Lanyau anak Iching, Tangkun anak Gawar anak Nyelipie anak

Munan have come forward to represent the community of Rumah Gayan, Dassey, Budu, Krian,

Saratok, Sarawak, Malaysia to sue the State Government of Sarawak and Vita Hill Sdn. Bhd.

The said representatives have engaged Baru Bian to bring the matters to court.

The State government issued a licence No:T/3456 to Vita Hill Sdn. Bhd. (a RM2 company) to log

Sungai Kerian/Sungai Budu area which covers Rh. Gayan community's native customary right


Members of the community had lodges Police Reports against the trespassers. The community

leader had written petitions of protests to the state authorities.

A dialogue was held between Land and Survey Department, Sarawak Forestry Corporation and

Peoples' Representative of the area in the person of Datuk Peter Nyarok anak Enteri. En. Barau,

a representative of Land and Survey Department, disclosed that the area covers by the said

licence is Native Customary Right land according to the record of his department.

The Police did not take any action against the trespasser and the state government does not

withdraw the licence that has been issued.

Within the area covered by the said licence, members of the community have titled land, rubber

gardens, pepper gardens, fruit trees, temuda land, tembawai and grave yards.

The community had hand over all the documents to the lawyer to show that they had occupied

the area before 1958. More over, members of the community have made a community survey

over their territory.

Forest Ordinance has 3 provisions for issuance of logging licences:-

(a) over state land,

(b)over protected forest, and

(c)permanent forest.

The community feels that the State government has abused its power against the community.
The community would fight in court for damages and for cancellation of the logging licence .

Saturday, October 25, 2008

Saratok:Saturday 25th October,2008
The Iban Communities of Sg. Jenggara, Sungai Sedan, Selambong, Abu, Entebu and Bajau are not happy because their territories or PEMAKAI MENUA is affected by TH Pelita Beladin Plantation project. The projecct is a joint venture project between Tabung Haji group and LCDA an government agency. The project covers about 1,577 ha. of land. It would affect about 2,900 families.

The developer has trespassed and encroached into their pemakai menua. Some rubber trees and sago palms were destroyed by the developer. Members of the communities had lodged police reports on the on the matters at Saratok Police Station. However, the Police did not acted against the trespassers.

Jenggara community has enggaged a well known NCR lawyer, Mr. Harrison Ngau, to take the matters to court.Other communities would engage another NCR lawyer, Mr. Baru Bian, to defend their rights and to claim damages.

Friday, October 24, 2008

New Concept of NCR Land Development

Land is always stirred emotions in people. In Sarawak, the native population espacially Dayak communities are rich in ancestral land, which is passed from generation to generation.To the Ibans of Sarawak or to the Dayak groups or natives , land is inherent property, cultural heritage and wealth.

Sarawak government policy is to raise the standard of living of the Sarawak native or indigenous population by placing their Native Customary Right (NCR) land within the corporate structure that would facilitate large-scale land development in rural areas.

Sarawak government has introduced a NCR land development scheme called "KONSEP BARU PEMBANGUNAN TANAH HAK ADAT" OR New Concept of Development on Native Customary Rights Land. The concept is formulated on the premise that the vast tract of NCR land can be turned into "LAND BANK", with new form of land ownership to facilitate joint venture operations with private sector for the purpose of large-scale development. NCR Land owners surrender their land.Under the New Concept, all NCR lands in an area would be delineated into one large block deleting boundaries of Native Customary Land territories. A body corporate,usually Land Consolidation and Development Authority (LCDA) would act as the Tustee Agent (with Power of Attorney) with a private plantation companies, selected by an agency itself,to be partners in implementation of plantation project of Native Customary Land.The desired documentation frameworks to implement the new concept of NCR Development are:-

1) a Deed-between State Government of Sarawak, Native NCR landowners and Managing Agent;
2) a Trust-NCR landowners appoint a Government Agency as their Trustee;
3)a Joint Venture Agreement-between Trustee and Developer(private company).

In the joint-venture company, the private company will have 60% equity while the government agency will hold 10%, and NCR landowners will get 30% equity share for investing their land for a renewable term of 60 years.

NCR landowners are rid of power and rights. They do not have the say nor the right to sit in the Joint Venture Company Board. By signing the Power of Attorney, they leave all rights over their lands to LCDA before the project begins. As the NCR landowners are rid of power and rights to check the Joint Venture's management, accounts, and all related matters, they are in great uncertainties of ensuring themselves that Joint Venture is making profit and that they would be receiving appropriate dividend.

Boustead Pelita Kanowit Plantation project in Kanowit District, Kanowit,Sarawak shows a very bad example. The project started in 1995.After NCR landowners put up protest in May,2008, only then the joint venture company,Kanowit Oil Palm Plantation Sdn. Bhd. distributed interim divident to 2133 participants in a total sum of RM1.39 million. Average amount each participant received RM890.76. Average dividend for each participant per year is RM68.50

When the native communities are not being put in the management and Board of Directors, they have no control over what is proposed. The intention of the Sarawak State Government to lift the standard of living of the rural native communities is doubtful. The Aspirations, needs and other general interest of the native communities have not been taken care of the "Konsep Baru" proposal. It is seen as merely a gentle way of grabbing lands from the native communities.

Ta Ann deployed its men to Naman and Durin areas to persuade Iban NCR landowners to become participants and surrender their NCR land.Because of the bad examples shown in Kanowit, Iban communities of Durin and Naman are reluctant to partcipate in the proposed joint venture projectTa Ann Pelita Durin Plantation between LCDA and Ta Ann to develop about 5141 ha. of NCR Land.

Thursday, October 9, 2008

Native Customary Right Land and Oil Palm Planters

Saratok:9th October,2008
The parties connected with Tabung Haji group offered to buy NCR land from members of the communities.They also have made an effort to quiten a number of community leaders.

To make a counter measure, a few educated community members had called for a meeting on 3rd October,2008 at Rh. Rengan, Selambong, Saratok, Sarawak, Malaysia.Bajau community, Entebu community, Selambong community and Jenggara community are affected by oil palm plantation estate project. The project overlaps NCR land of the communities.

The communities are in the process of forming Action Committee to counter the trespassers that encroach their NCR land.The communities seek the assistance of NGO to make a search and research on the parties responsible for trepssing the communities' NCR land.

Friday, September 26, 2008

Laws and Native Customary Rights

Native Customary Rights or native titles are well protected under the laws applicable in Malaysia.General Laws of Sarawak and Laws in Malaysia are the laws that are applicable in Malaysia.

Native Court Ordinance 1955, Native Court Ordinance 1992 and Land (Classification) Ordinance 1948 define general laws of Sarawak to mean not only:-
(1)Statutory Laws but
(2)Custom and usage as well and as such
(3)Native Customary Rights that have existed before the rule of Rajah and continue until now.

Interpretation Acts 1957 & 1958 and Article 160 of Federal Constitution of Malaysia describe Law in Malaysia to include:-
(1)Written Laws,
(2)Common Laws in so far as it is in operation in the Federation or any part thereof, and
(3)any custom and usage having the force of laws in the Federation of Malaysia in any part thereof.

In short, Adat and Written Laws are the laws used in Malaysia.

Adat is a custom or a rule of conduct which is obligatory upon communities within its scope established by long usage. A valid custom has the force of the law. Custom is to a society what law is to the state. Avalid custom is immemorial antiquity, certain and reasonable, obligatory, not repugnant to statue law, though it may derogate from the common law. Native customary rights can be defined as rights of the native acquired and/or created by virtue of custom or adat of the natives. Native customary rights may refer to:-
(1)the rights over land, or
(2)rights that govern the social life of the native communities which is called adat, or
(3)eveb customary laws. These practices and usages include hunting, fishing, agriculture, gathering, cremonial and religious function.

Sarawak was ceded to James Brooke with proprietorship and sovereignty over land, but James Brooke had shown a consistent respect for native customary rights over land. He had referred to native customary rights as "the indefeasible rights of aborigines". He was actuely aware of prior presence of native communities, whose own laws in relation to ownership and development of land had be consistently honoured.

Written Laws in Malaysia include (1)Constitutional Laws, (2)Statutory Laws, (3)Common Laws, and (4)International Laws.
(i)Constitutional Laws
Federal Constitution of Malaysia is the Supreme law of the country. The issues of fiduciary obligation towards the natives have arisen in Malaysia In Sagong case, Federal and State governments were both said to have owed a fiduciary duty to Orang Asli to protect them from unscrupulous exploitation and to safeguard their tribal organisation and their way of life.That duty emanates from Article 8(5) of Federal Constitution of Malaysia. In case of Sarawak and Sabah, Article 153 of Federal Constitution of Malaysia imposes fiduciary obligation on Yang di-Pertuan Agong to protect the interest of the natives. Further preferential treatment as rehards to alienation of land by the state is contained in Article 161A(5), while protection of native law and custom is also under Article 150(6A) Clause 5 of Federal Constitution of Malaysia.

(ii)State Constitution of Sarawak
For the natives of Sarawak, this is a reflection of the Brooke's government's belief that Sarawak is "heritage" of its people and that the land is their Lifehood. In the Nine Cardinal Principles of Rule of English Rajahs, the government held itself as trustee of the people and it was for this reason that policies were put in place for protection of natives' interest against outside exploitation.

The state fiduciary duty also arises because of inalienability of native customary rights and native customary right land as a form of property which involves resources. The state power to impair native customary rights by way of alienation and by issuing of licences to parties to extract resources fro native customary right land and the fact that such rights are inalienable except to another native ot to the state, give rise to fiduciary obligation on the state.The fiduciary obligation proctects those rights so that they cannot be terminated without:-
(c)consultingt, and
with the customary rights holders ingood faith, limiting the impact and detriment on the affected natives.

Statutory Laws
The natives can assert their rights under Satatutory Laws to protect or defend their NCR land.
The Forest Ordinance only has three provisions for isuing Timber Licence.
(a)Section 49- ti issue Timber Licence over Forest Reserve;
(b)Section 51- to issue Timber Licence over Protect Forest Reserve; and
(c)Section 55-to issue Timber Licence over State Land.

Any Timber Licence that covers NCR land is null and void.

Land Code does not have any provision for alienation of native customary right land.
Native customary rights cannot be extinguished if not according to the law without adequate compensation.

Section 96, 97 and 105 of Panel Code provide rights of private defence of body and property against thief, robbery,Mischief and trespass.Section 27(5) provides right to arrest.
The native communities can assert these rights against any intruder from outside the communities.

Common Law
Common Laws are judge-made laws which are based on the decision of the courts. Common Law recognises pre-existence of native customary rights. In Madeli III, the Federal Court handed down its decision in Superintendent of Land and Survey Miri Division and Government of Sarawak v Madeli bin Salleh(Suing as Administrator of the Estate of deceased, Salleh bin Kilong). The Federal Court reviewed and commented on a number of Privy Council, High Court of Australia, and High Court of Canada decisions stating that the common law on indigenous property rights. The Federal Court acknowledged that the rule, upon acquiring soveriegnty, court assumes that the Crown intends to respect existing property rights. Further, the Crown's acquisition of soveriegnty did not disturb indigenous land rights held pursuant to customs, although the Crown could extinguish such rights with clear and unambiguous legislation. Following the decision in Mabo(No.2), the Federal Court explained that the Crown did not acquire absolute beneficial ownership of land, but instead, obtained radical title, subject to any indigenous rights over land. Finally the Federal Court cited a Privy Council decision emphasizing the importance of understanding indigenous rights and customs on their own terms without importing English conception of property law.

International Laws
As member state of United Nations, Malaysia is obliged by Article 56 of Chartter of United Nations. Malaysia ought to observe UN Instruments like Chartter of United Nations, Universal Declaration of Humah Rights, UN Declaration of Rights of Indigenous Peoples, CBD, ILO 169, Convenant on Civil and Political Rights. Malaysia had voted for the adoption of UN Declaration of Rights of Indigenous Peoples in the General Assembly of United Nations. Articles 25,26 and 27 of the declaration deal with rights of indigenous peoples to their land.

Thursday, September 25, 2008

Naman Iban Communities Are Not Happy With Issuing Of Timber Licence Over Their NCR Land

Rembang Timber Sdn. Bhd. was given a timber licence No.:T/3478 by the government through Director of Forestry to log Sungai Naman area which includes native Iban's territories which are their "pemakai menua" which is made up of temuda, pulau, tembawai,cultivated land, gardens, rivers/streams and burial grounds which are their native customary right land. The licence holder engages Jinhold Sdn. Bhd. as its logging contractor. Sarawak Forestry Corporation is the authority that issues Permit To Enter Coupe to logging contractor to extract timber from the said area.

Many members of the Iban communities in Sungai Naman, Sibu, Sarawak, Malaysia are not happy with the logging activities in the communities' territories. The communities viewed the loggers who are armed with Timber Licence and Permit To Enter Coupe over their native customary right land as llegalised robbers. Tuai Rumah Endam anak Jambing, Kalai anak Sibok and Jawa anak Tabor had written to the authorities to stop the illegal logging in the communities' territories.

The Iban communities in Sungai Naman area have ancestral pre-colonial link to their territories. It is this link that distinguishes them from non-natives. As Iban by race, Section 3 of Interpretation Ordinance and Article 161A(7) defines Ibans of Sarawak as native people.

The term ancestral/traditional land and customary rights had generally been used interchangeably refer to land occupied and utilised by the native
(i) individuals,
(ii) families, and
since time immemorial, either by themselves, or through their predecessor-in-interest, continuously to the present. Their inalienable rights to land and resources confirm that they always have ownership and stwardship over their territories.

The rights of the natives to their land and resources have been systematically ignored by loggers and state authorities. State's silence and inaction to illegal logging means YES to illegal logging over NCR land. Breaches of the native peoples' property rights committed by the loggers/legalised robbers have gone largely unpunished by the state although Article 8(1) of Federal Constitution of Malaysia put all persons equal before the laws and are entitled to equal protection of the law.

Loggers exploit the native communities by taking advantages of their poverty, illiteracy and ignorance as well as by intimidating them. They not only carry indiscriminate logging which drastically changes the physical landscape of the communities' territories but they would also cheat the native communities of their land resources and culturally change the communities.
Their activities would cause extensive destruction to ecosystem, land, crops, burial sites, forest resources, and pollution of rivers or streams.

Logging bring conflicts between the loggers and local communities. Conflicts often happen between the communities and legalised robbers because the native communities resist or oppose their activities. Loggers could easily buy community leaders and other personalities within the communities who in turn do favour for the loggers to suppress members of the communities. This may cause rift amongst the members of the communities.

Logging activities are deforestation process and a way of destroying biodiversity resources. They are contributing factor of climate change. Climate changes affect native Ibans and all humanity. In addition ecological system and their rhythms are affected and in turn they contribute to deterioration of quality of life of the Iban communities.

Tuai Rumah Endam anak Jambing, Kalai anak Sibok and Jawa anak Tabor viewed that the authorities wrongdully issued a Timber Licence over the communities' NCR land. They alleged that the authorities had kot made reference to Land Use Map which is available at Land and Survey Deparetment for minimun standard of reference before issuing logging licences and permits to enter coupes. It seems that the authorities either abused their power with regard to the issuing of the said documents.

Observation shows that the authorities are using the loggers' facilities when they conduct any investigation. This situation puts the officers involved into high risk into committing corruption.The authorities are paralysed becaused of lack of staff members and lack of facilities as a result of privatisation of forestry matters. Young indigenous officers were transfered or seconded to other government departments. These factors enhance illegal logging to flourish in the state of Sarawak. Sarawak is losing revenue from timber industry due to illegal logging and lack of control over loggers, either illegal or legal.

Tuai Rumah Endam anak Jambing, Kalai anak Sibok and Jawa anak Tabor have yet to receive a reply from the authorities up to this date.In their advovacy, they had led a group of followers to errect a signboard at the road side to warn the companies as well as government authorities not to disturb the communities' territories.