Court rulings strengthen native rights on NCR

Recent court rulings favouring natives in NCR land issues should be seen as a warning to potential investors.

KUCHING: The recent court victories of native customary rights (NCR) landowners against oil palm companies should serve as important lessons and precedents to would-be investors.

NCR lawyer See Chee How (pic) said oil palm companies can no longer bully landowners simply because the state government refuses to respect the people’s rights.

“There is no alternative for big oil palm companies but to cooperate and work directly with the native landowners, and this means you (the companies) have to respect their (landowners) native customary rights over the land.

“They should respect the customary rights of the native landowners, although the government does not respect the people’s rights if they want to develop their land,” he said.

See, who is also Batu Lintang assemblyman, was commenting on a NCR land case between 168 native landowners and Pelita Holdings, Boustead Pelita Kanowit Sdn Bhd, Land and Survey Department and the State government.

The landowners had sued the companies and the state government after the firms failed to honour its agreement and disburse profits to landowners despite four years of yeild.

After hearing the argument by lawyer Baru Bian, the Sibu High Court ordered the agreement to be cancelled and land to be returned to the landowners.

Damages and compensations are to be assessed later.

Natives not anti-development

Relating to the case, See said that the companies could appeal, but the land will have to be returned to the people.

“We are busy looking for a good plantation company to replace Boustead and help manage the plantation.

“Arising from this case, all the while we have been saying that the investors should respect the native customary rights of the people over the land, even though the state government does not respect native customary rights.

“The natives are not anti-development as labelled by certain quarters. In fact they want development; they want a better life for themselves and for their children and their future generation,” See stressed.

He pointed out that knowing this investors should work together with the landowners to develop the land.

“But when investors insist on going together with the government and get the provisional leases and start planting oil palm then you bear the consequences.

“We have won so many cases (nearly 20 cases) and the precedents are all there. And for those who listened to us they are now making money and the natives also benefit.

“It has got to be a win-win situation. But if you do it alone, you may win all or lose all. In the case of Boustead as well as in Gedong and other cases, the companies lose all,” he added.

“If they work with the native land owners, there will be a win-win situation. But if they chose to listen to the government, of course you either win or lose that kind of thing,” he said.- The Free Malaysia Today.

SADIA asks for help

KUCHING – The Sarawak Dayak Iban Association (SADIA) wants the manipulation and violation of the native rights in Sarawak to be brought to the attention of a United Nation Convention to be held next month in Copenhagen.

“SADIA is not invited to the convention, but please help us to highlight the manipulation and violation of our native rights by timber and plantation companies in Sarawak,” said SADIA President Sidi Munan.

He made the appeal after briefing a high powered delegation from Bangladesh on problems affecting the indigenous people of Sarawak at the SADIA headquarters on Wednesday afternoon (11 Nov 2009).

As guests of the association, the 11-member delegation was in Kuching to study problems faced by the indigenous people in the State.

Led by State Minister Dipankar Talukdar, the delegation which included Members of Parliament, a judge and an UNDP representative had met native leaders in Sabah and Orang Asli in the peninsula for a similar fact finding mission. They will proceed to Jakarta and West Kalimantan on Friday.

Sidi said: “Since your country is going to attend the convention, please help us to highlight problems, the violation, manipulation and exploitation of our native rights which have become very acute in the last five years by plantation and timber companies.

“Not only our catchment areas and our rivers have been polluted, our NCR lands have also been encroached into. Many of our natives have been arrested and jailed for defending their land and their rights,” he added.

He said: “In the meantime, the natives have taken their cases to court, but for their cases to be solved, it would take one year to 10 years. And by that time, there is nothing left of native rights. Thus, the only way open for them is to put up blockades against these companies.”

Sidi said SADIA has been trying to help by highlighting and bringing to the attention of international bodies regarding the problems faced by the natives.

Speaking on behalf of delegation, Dipankar Talukdar said that not much was known about the natives of Sarawak but after they had been briefed and seen a documentary film on the plight of the natives they were now enriching their knowledge.

“Exploitation of natives is a world-wide phenomenon and nobody pays any attention to them,” he said, adding that his country did not have such a problem now as the present government’s policy to help the indigenous people was supported by the majority of the non-indigenous people.

“But let us all, the indigenous people of the world be united in order to ensure a better future,” he said.

After the briefing, they left for a longhouse, Kampung Temiang in Simunjan, where they stayed for the night.

(Note: The story was first published by The Malaysian Mirror and it is reproduced here for the readers of The Broken Shield)

TYT’s NCR land is not spared

It is not only the Dayaks’ NCR lands that have been leased to companies, but native customary right land belonging to our present beloved Governor (TYT) has also been leased to a company for prawn farming, said Baru Bian (pic below), a prominent NCR land lawyer.

“It is not only the Dayaks NCR lands are affected; in fact all the natives of Sarawak NCR lands are affected.

“I wish to state that even a NCR land belonging to our present beloved Governor was affected by the issuance of a Provisional Lease to a company for prawn farming, as revealed in one of the cases I handled, a decision, which is still pending in the High Court at Kuching, Sarawak,” he said in a statement.

“Such is the unbridled power of the present State BN Government of which these Dayak leaders are proudly part of. If the top civil servant’s NCR land can be affected, none of the ordinary Sarawakians NCR lands is protected and safe from such an abuse of power today.

Picture Credit: http://www.malaysianmirror.com

“How I hope that these Dayak leaders spent more of their political energies addressing pertinent issue like the deprivation and encroachment of NCR over land rather than a political rhetoric,” he said when commenting on remarks made by PAS president Abdul Hadi Awang.

Hadi was reported to have said that the voters of Batang Ai did not know how to vote as they were still wearing loin clothes.

Bian who is a PKR leader in Sarawak said: “Some Dayak leaders who appear to have been angered and offended by such disparaging remarks should equally, if not be more moved with fervour and zeal in defending a more fundamental issue or rights affecting our Dayak community today, that is, the deprivation and encroachment of Dayak NCR lands and forests all over Sarawak by various companies.”

“This is more pertinent and crucial issue as the deprivation and encroachment of NCR lands threatens the very life and our existence as Dayaks and other natives of Sarawak, as land and the forests are the very source of their livelihood.

“To this day, none of the present Dayak leaders in the State BN Government dares to speak out on this very issue. Instead they have been found to echo the voices of their political master, Chief Minister Abdul Taib Mahmud that the State Government does not grab or take any NCR lands belonging to the natives of Sarawak.

“I respectfully ask these so-called Dayak leaders to go to the ground and see for themselves how hectares and hectares of NCR lands had been given out to big investors and companies for oil palm plantations, tree plantations, timber licences, quarry licences and replanting licences from Lundu to Lawas,” he said.- The Broken Shield

Source: www.thebrokenshield.blogspot.com

We have power: why use the power of the spirits and court?

Image credit: The New Straits Times

It is a bitter lesson for the people of two longhouses – Rumah Ranggong and Rumah Belili, Sungai Sah, Bintulu Division – to learn for supporting Barisan Nasional candidates in the last parliamentary and state elections. Why a bitter lesson?

It is bitter because, despite their strong support for the Barisan Nasional government, their land of 1,803 hectares are taken away and are given by the BN government under a provisional lease to BLD Resources Sdn Bhd for the planting of oil palm.

At 10.00 a.m. on Thursday morning (4 December) Changgai anak Dali, 84-year old, a third generation resident of the area, was summoned by BLD Resources to appear at the Kuching High Court for “trespassing” into his own land/garden that has been taken over by the company. He claimed he had customary rights over the land which he and his forefathers had farmed for almost a century. The company wanted the Court to stop him from entering the said land.

Changgai was accompanied by 75 others who represented each of the 76 doors of Rumah Ranggong. Their land was also involved. The case was adjourned to 13 January 2009 to allow the company to file an application to include the State government as a party. Harrison Ngau who represented Changgai said several more suits would be filed against the company for trespassing on their NCR land.

Before the start of the case, a miring (ritual) ceremony was held in front of the court. As they could not get help from their elected representatives (MP and State Assemblyman), Changgai and those accompanying him had to seek the assistance of the spirits to help them fight forces bent on taking away their land.

The people of Rumah Ranggong and Rumah Belili were not the only ones who had brought their cases to court, but also people in other parts of Sarawak – from Lawas to Limbang, Bintulu, Miri, Sibu, Sarikei, Kanowit, Simanggang, Simunjan, Serian and Lundu - had also resorted to court to claim back their land.

Whose fault is it? It is your fault, my fault and the fault of the community. We Dayaks can never learn a lesson as election after election we continue to vote BN candidates who have no guts to speak on our behalf.

There is power that is greater than the power of the spirits and power of the court. It is YOUR POWER, the power that can CHANGE the government.

Source: www.thebrokenshield.blogspot.com

Dayak-based parties should form NCR land public complaints bureau

When the chief minister Abdul Taib Mahmud introduced several amendments to the Land Code that affected Native Customary Rights (NCR) land in 2000, many Dayak State assemblymen spoke highly of Abdul Taib Mahmud. Some went overboard to heap praises on him.

Roland Sagah, PBB State Assemblyman for Tarat said that Taib was and “is the greatest defender of native land rights”, while the late Dr. Judson Tagal, SPDP State assemblyman for Ba’Kelalan (died in a helicopter crash) said the amendment to the land Code “is the jewel in the crown for the State Barisan Nasional government led by Taib” and would spell a new beginning in the development of native lands and a new era in the life of the natives, all because Taib had the moral and political courage to do it.

Another SPDP leader, Sylvester Entri Muran, State assemblyman for Marudi, said the government under Taib had made a “quantum leap by having foresight” in the formulation of the bill.

Today (eight years after the bill had become law), the amendments had not only become the bane of the NCR land owners’ life, but also their nightmares. Under the law, all lands untitled including NCR lands are State lands and as a result many NCR lands have been seized and declared State lands. Once NCR lands declared State lands, the lands are being leased to big companies for the planting of oil palm, after premiums have been paid.

Up to October 2005, more than 1.2 million hectares of land, the bulk of which are NCR land, have been approved for oil palm plantations. But the Natives who know their rights are challenging the government for taking away their ancestral lands. Near 200 cases of NCR lands have been filed with the court. The cases so far heard have been won by the Natives. This is a very encouraging piece of news.

One of the most damaging amendments to the Land Code is 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 owners’ customary rights over land. 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 sons, and so on. The land that has been acquired by any other means by the family always belongs to the family and its generations.

NCR land could be acquired through the following methods: through the feeling of virgin jungle and the occupation of land thereby created; by the planting of land with fruit trees; by the occupation or cultivation of land; by the use of land for a burial ground or shrines; by the use of land of any class for rights of way; or any other lawful means.

Emphasis should be given that by substituting the word “acquired” with the word “created” the customary rights over such land could be terminated, as only the “creator” would have the customary rights over such land. And after his death, the land will be reverted to the government if the descendents are unable to provide proof for such a claim.

With the amendment, the land that has been created by their forefathers ended with their deaths and the land will be reverted to what is commonly known as the State land. You can claim the land provided you are able to prove that your great grand parents created the land.

The onus is on you to provide the proofs. Very few, if any NCR land owners can prove that their great grand parents created the land. They can only depend on their Headmen (Penghulus and Tuai Rumahs) to be their witnesses, but then the Headmen have been warned by the government not to simply endorse such land as NCR land. Slowly and surely all the NCR land will be reverted to the government. In 10, 20 or 30 years’ time, the natives especially Ibans will lose their land. They cannot “create” rights now over any new land as this is also against the law formulated since January 1958.

What makes it worse for the Dayaks in particular is that their NCR land is not titled. The Dayaks have been asking the government to survey their lands so that titles can be given to these lands, but the government refuses to do it by giving so may excuses such as there is no money and lack of staff to carry out such surveys. But when the Dayaks see that the government has been issuing land titles to Malays now and then, they feel that they have been unfairly treated.


What are the implications?

The implications are many. But the most important one is that the Dayaks suddenly become illegal squatters as more than 5,000 longhouses have been built on lands that have not been surveyed. Any time the government wants them out from the land, the Dayaks will have no recourse to any law to protect them.

Parti Rakyat Sarawak (PRS) has formed its own NCR land task force as it knows the seriousness of these problems confronting the Dayaks. But that task force is less significant as it means only for PRS. Perhaps, forming some sort of NCR Land Public complaints Bureau after the style of Malaysian Chinese Association (MCA) Public Complaints Bureau may be more effective in dealing with NCR land problems. The affected landowners can seek help, advice, guidance, etc and etc. from the bureau that will not only study each and every case, but also act as a bridge between the people and the government.

No doubt SUHAKAM (Human Rights Commission) has been carrying out investigations on abuse of power, infringing on human rights, etc. against the landowners by the implementers of “politics of development”, but do parties like SPDP and PRS that claim to represent the Dayaks dare to form such a bureau and risk being isolated or even condemned by their big brothers in the Barisan Nasional? In other words, are they scared of being bullied?