28 July 2010
KUCHING: It takes 47 years for the government to make a decision to survey native customary rights land, issue titles and return them to the owners. Here again it is Prime Minister Najib Tun Razak who makes the decision and a promise of RM20 million to carry out the survey works instead of Sarawak Chief Minister Abdul Taib Mahmud.
In fact Najib has no business as land is a state matter. But why did Najib make the announcement? And why did Taib refuse all this while to survey NCR land?
Najib made the decision last week after visiting Long Banga, Baram, an interior seldom visited even by Sarawak state ministers. He must have heard about the Dayaks’ grouses soon after he took over as Prime Minister in April 2009. In order to find more about the complaints, he sent his Sarawakian minister Idris Jala to seek the truth. And based on Jala’s reports Najib announced the decision.
The announcement not only caught the state government leaders by surprise, it also embarrassed them. But Najib does not seem to care whether he has the right or not; his federal government’s survival depends on solving the problem. To continue to occupy Putrajaya, he must win over the Dayak-majority parliamentary constituencies. There are 23 Dayak majority and Dayak-mixed constituencies.
But then his decision puts great pressure on the State Government to survey the NCR land. Since Najib made the announcement, the State government must show support and react immediately. Thus, the state government issued a Press statement not only to concur with the PM’s announcement but also to say that Taib’s government has approved a new NCR land initiative.
“The initiate has been approved by the government in order to come up with a faster approach to provide security to native customary rights land and to enhance the economic well being of the land owners,” said the statement which was issued under the name of Abdul Taib Mahmud, who was at that time in London.
Taib said: “The state government has always recognised that NCR land is an issue that is close to the hearts of our people. As such this joint initiative between the state as well as the federal government is to help the people create value to their idle land while at the same time addressing their concern about the long term security of their NCR land.”
Everyone knows that all this while the State government has not only ignored the cries of the Dayaks for their NCR land to be surveyed and given titles, but also goes ahead to grab NCR lands and leased them to family members and crony plantation companies.
The government legalized its actions by amending the Sarawak Land Code several times, and each time it made it very difficult for the natives to claim their customary rights over their ancestral lands. And the most devastating amendment to the land code was made in May 2000 especially Section 5. Section 5 (a) (2) (i) is amended by substituting the word “acquired” wherever it appears in the subsection with the word “created”.
On the surface of it, the amendment looks very innocent. But if you go deep into and analyse it, it is very destructive to the natives customary rights of landowners. Prior to the amendment, the NCR land can be passed from generation to another generation, i.e. from father to son and his children’s children, and so on. The land that has been acquired by any other means by the family always belongs to the family and its generation.
NCR land could be acquired through the following methods:
(1) through the felling of virgin jungle and the occupation of land thereby cleared;
(2) by the planting of land with fruit trees; by the occupation of lands;
(3) by the use of land for a burial ground or shrines;
(4) by the use of land of any class for rights of way;
(5) or any other lawful means.
Emphasis should be given to the word “acquired” which was substituted with the word “created”. This can result in the customary rights over such land be terminated, as only the “creator” shall have customary rights over such land. And after his death, the land shall be reverted to the government if the descendents are unable to provide proof for such a claim. Such a land will be known as “State Land”.
No doubt you can claim the land provided you can prove that your great-great forefathers created the rights over the land. The onus is therefore on the claimants. And very few people can prove it. They can depend only on Tuai Rumah (longhouse headman) or Penghulus to be their witnesses. But the headmen and Penghulus have been warned by the government not to simply endorse such land as NCR land or else they will be in trouble – termination of their appointment or even go to jail.
Bringing the case to the court will incur a large sum of money. Putting a deposit as required by the court will cost him a sum of RM10,000, and what about the legal fees? Even if you have money, it will take time for the court to make a decision; assuming you win in the high court, the State government then makes an appeal to the court of appeal. Again assuming you win, the State makes another appeal to the Federal Court and the case of Madeli bin Salleh gives us the best example. All in all, it takes from 10 to 20 years for the case to be settled. This is the government’s strategy – delaying tactics.
All these are a great disadvantage to the Dayaks when the NCR land is not titled. Any time the government wants their land, it is difficult for them to fight back, especially when Awang Tengah Ali Hassan, second minister of resource planning and management announced government’s policy on land on 16 June 2005 that “all lands not surveyed or any land not issued a land title, including lands under NCR are government lands.”
As a result of this policy, the government has acquired practically all the good lands from Limbang to Baram, Bintulu, Miri, Sibu, Kapit, Betong, Simanggang, and Samarahan to Kuching Divisions. And all these lands totalling some 1,268,888.161 hectares have been approved or earmarked for plantation estates, according to the third quarter reports of Land and Survey Department of 2005.
The bulk of these lands are under NCR lands which are to be planted with oil palm, rubber, banana and sago. The majority of all these go to Taib’s family members and cronies.
According to “Laporan Statistik Suku Ketiga Tahun 2005 Bagi Tanah Ladang” prepared by the Land Branch of the Land and Survey Department, Kuching, Taib’s brother-in-law Robert Genied has been given 16,000 hectares of land in Sungai Ensengai, Samarahan Division. Approval had been made in May 2004. The company’s name is Lambang Sinar Mas Sdn Bhd.
Narodeen Majais, assistant minister in the Chief Minister’s Department had his application for 16,486 hectares of land approved between March 1996 and February 1998. The application was made under a number of companies such as Pelita Nirwana Muhibbah (4,555 hectares at Tg. Midin, Serian), Gedong Plantation (3,770 hectares at Btg. Karang, Serian), Hydroflow Sdn Bhd (2775 hectares between Btg. Sadong and Sungai Simunjan and Gedong) and Indranika Jaya Sdn Bhd (1906 hectares at Tg. Embang, Simunjan).
Syed Abu Bakar’s companies of Melur Gemilang Sdn Bhd and Kumpulan Kris Jati Sdn Bhd were given a provisional lease to develop 23,744 hectares of land between Sungai Simunjan Kanan and Btg. Sadong.
Deputy Minister Alfred Jabu’s family members and cronies are not excluded from receiving a provisional lease to plant oil palm. Utahol Sdn Bhd, a company owned by Jabu’s son, Gerald Rentap was given approval to plant 6,900 hectares of land in Ulu Medamit, Limbang.
Jabu’s nephew, Robert Lawson Chuat’s Durafarm Sdn Bhd had been given a provisional lease to plant 3,665 hectares of land with oil palm at Batu Api, Betong and 1581.8 hectares at Tg. Bijat, Simanggang.
Henry Jantun, closely associated with Jabu, has also been granted a lease to plant oil palm in 2873 hectares of land between Btg. Lupar and Btg. Layar, Betong, and 2127 hectares at Tg. Bijat, Simnaggang under the name of Everherald Sdn Bhd. On top of that his company had also been given 2000 hectares between Betong and Simanggang for integrated farming.
The government also approved provisional leases to big companies like Bintulu Lumber Development Sdn Bhd, Sarawak Oil Palm Bhd, Tabung Haji, Saremas, KTS, Green Ace Resources, R.H. Plantation, Samling Plantation, and Shin Yang Oil Palm Sdn Bhd to name a few.
There are also government-linked companies like Pelita (Land Custody Development Authority), Sarawak Land Development Board and Sarawak Land Consolidation and Rehabilitation Authority that have been given PL to develop the land for the planting of oil palm.
Almost all of these companies have problems with the natives whose NCR lands are within the areas given to them. Besides carrying out blockades, the natives are also suing them and the government. For now, there are 203 cases still pending in the High Court.
Who is actually to be blamed for the blunder? Surely it is the government, because it misleads the companies that the lands are state land. Naturally these companies come in and pay their land premium; then they start to clear the land off trees, shrubs and thick bushes. In the process, they also destroy natives’ rubber trees, fruit trees, and cash crops. Certainly the natives are furious.
Lodging reports with the Police are also useless as the Police cannot take action. These companies are armed with the provisional leases and claim they have the right to fell trees or fruit trees in the stated area. Although the natives claim that the lands belong to them, they are put in a disadvantage as they have no land titles to prove that the lands are theirs. So confrontation begins between the companies and the natives. As land is their life, the natives will not bow to any pressure. Instead, they resort to blockades because the authorities fail to help them.
In the meantime, they seek the service of legal firms with a view to stop and to claim damages. When some companies from West Malaysia know that there are such things as NCR lands, they abandon the project and leave. But for those who think they have the right, they stay on and find themselves in court. So far the natives have won all the 20 cases that have been settled in the High Court. Many of these companies have spent a colossal amount of money in paying lawyers, court costs, and compensations.
The Court has made it very clear that NCR land should include ‘pulau galau’ (communal forest), ‘pemakai menua’ (territorial domain), ‘temuda’ (farming land) and ‘tembawai’ (old sites of longhouses).
“This decision is confirmed by the Federal Court when it decided the case of Madeli bin Salleh vs the state government in 2007 which was based on the Nor Anak Nyawai case in 2001,” said Baru Bian a prominent native customary rights land lawyer.
“This is the land that they must survey and give titles,” said Baru, who is the chairman of Sarawak Parti Keadilan Rakyat, pointing out that the state government has a different definition of customary right lands as has been implied all these years.
“What I want to hear loud and clear now from the chief minister is to make an undertaking to the people of Sarawak to survey all NCR land. This is what we want to hear from the State government.
“There should be no political rhetoric. The Dayaks have been revolting,” he added and called on the government to allocate more money as the amount of RM20 million is insufficient to carry out survey works.
But there are questions that beg answers: Why does the Government suddenly decide to survey all NCR land? Is it a political gimmick to win the hearts and minds of the rural people before the state election?
James Masing, Land Development Minister who knows the general thinking of the public quickly puts up a statement to say that the announcement made by Najib is not a political gimmick. It is real, he said.
The BN government knows that the coming election is crucial and it considers the rural areas as its “fixed deposit” and that is where the promise to survey all NCR land comes in. In the urban constituencies, it has more or less confirmed that it is in a big trouble.
The natives have already made up their minds, especially those who have suffered so much for the last 10 years. And following rampant abuses of their NCR lands, the NCR land owners have realised the gravity of their problems and are united in their stand.
They have formed what is known as the NCR Land Owners Association. This association works closely with Suhakam, Sarawak Dayak Iban Association (SADIA) and other non-governmental organisations. Together they are prepared to highlight their problems at the international forums including the United Nations.
And the Opposition Pakatan Rakyat is certain to use NCR land issue as its top issue in the rural areas in the coming election. It has promised the land owners that in the event of the Opposition winning the next state election, the NCR land will be return to the owners.
This is what worries Najib.