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:-
(a)involving,
(b)informing,
(c)consultingt, and
(d)negotiating
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.
Friday, September 26, 2008
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
(iii)communities,
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.
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
(iii)communities,
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.
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