Suhakam promises to help NCR land problems

SERIAN:  Incursions into native customary rights land including illegal feeling of rubber trees and fruit trees on the land form the most complaints the Human Rights Commission (Suhakam) received on human rights violations in Sarawak, said Sarawak Suhakam Commissioner Detta Samen.

“Today we are conducting public hearing on the complaints by the native landowners to stand up and tell us their side of the story. An equal opportunity will be given to the corporate bodies and the government to respond to the so-called allegations,” he said.

The public hearing was chaired by Suhakam chairman Hasmy Agam with Samen and James Nayagam as panel members.

The team will also visit other towns and cities including Sibu, Miri and Bintulu for such hearing.

Samen said that the public got to understand that the public hearing was the second stage and the first stage was the public consultation that was held towards the end of last year.

“After we have done the public consultation, we are now doing the public hearing whereby the complainants are given the opportunity or a forum for them to stand up and tell us their side of the story.

“An equal opportunity will be given to the corporate bodies and government to response to the allegations,” he said.

Samen said that since there were so many NCR land complaints, it is not possible for Suhakam to solve these problems on a case by case basis.

“It is better for us to look at the overall picture and find out where exactly is the problem. It could be the problem of the government. It could be the problem of the contractor or it could be the problem of the natives themselves.

“So let us look this problem. This is what we are attempting to do,” he said, pointing out that this is the first time that Suhakam is conducting a national inquiry on land rights.

He said:  “After we heard the evidence and finished the hearing we will compile the reports and then we may be able to come up with some kind of recommendations or suggestions.

“These suggestions and recommendations will be given to the relevant ministries, to the state legislative assembly and parliament,” he said.

Asked why the government kept on issuing provisional leases to corporate bodies despite so many complaints, Samen said:  “The government has the right to issue PL to the contractors because the state needs to harvest the resources, but in the process of issuing the PL, there must be provision that communal forests or NCR land must be taken out of the forests.

“If you want to intrude into NCR land, there must be element of compensation, and this can only be done if there is a proper negotiation, proper dialogue between native communities and contractors and also the government agency.

“They can even approach Suhakam which can be the negotiator or arbitrator for the parties concerned.

“I don’t say there will be no problems upon negotiations. What I am saying there will be less problems.

“Yes Suhakam can help in the negotiation process,” Samen told FMT.

In Monday’s hearing, the common grouses by the natives are that their NCR land have been given away without their knowledge, their rubber trees, cash crops and fruit trees were illegally felled without compensation being paid,  and the natives are accused of being ‘outsiders’ and thus they are not allowed to enter their own land.

Breaches of agreement were also a common complaint when the companies refused to honour the agreements they made with the landowners.

Meanwhile, Sarawak PKR chief Baru Bian has described land-grabbing of NCR land  as being ‘chronic’ spreading from Lawas in the north region to Lundu in the south.

More than 200 of NCR land cases have been filed by native landowners in the High Court and are awaiting hearing.

What has happened to our BN Dayak leaders?

According to The Borneo Post today (Feb 11),  Parti Bersatu Sabah (PBS) deputy president Maximus Ongkilili disagreed with the state attorney general Roderic Fernandez’s interpretation of native customary right (NCR) land provision in the Sabah Land Ordinance (SLO) that there is ‘no NCR land after 1930’.

Describing it as a wrong interpretation, he said that unlike in Sarawak there is no cut-off point in the context of Sabah.

“If you look at the state land ordinance very closely, it does not say that. I am a not lawyer by training, but I have some basic law training and I think it is a wrong interpretation because the judgment of the High Court of Borneo over the years have recognised the basis of NCR land established in Sabah.

“I think that is sad. That is a dangerous statement,” said Ongkilili, who is a federal minister of science, technology and innovation.

Now what is interesting here is that Ongkilili dares to say something against the attorney general of Sabah and the state government. He dares to say that AG was wrong in his interpretation of the land code in respect of NCR land in Sabah.

In Sarawak, none of the Dayak leaders in state Barisan Nasional dares to say anything against the AG of Sarawak and the Chief Minister for not only wrongly interpreting the Sarawak Land Code in respect of the NCR land, but also for refusing to accept the decision of the Court including the Apex court.

The AG, who is very much anti-Dayaks owing NCR land always argues in the Court that NCR land does not include "Pemakai menua" and "Pulau galau". He just refuses to accept the Apex court decision on this.

In the court one after another of the NCR land cases are won by the native landowners through lawyers like Baru Bian, See Chee How, Paul Raja, John Antau and Harrison Ngau to name of the few brave lawyers.

But where are our Dayak ministers and Dayak elected representatives? Don’t they have any conscience when they know that some of the NCR landowners are their grand-parents, parents, brothers and relatives whose lands have been taken away and given to oil palm and timber companies?

Not only they don’t hear their cries for help, but they are part and parcel of the state government’s tools and mercenaries (or Ghurkha soldiers as Edwin Dundang, former SNAP President described them). (Ghurkha soldiers are employed by some Sultans to protect them from their own people).

I recall in June 2000 sitting of the state legislative assembly during which the state government passed an amendment to the Sarawak Land code in respect of the NCR land.

All Dayak assemblymen supported the amendment which is very damaging to NCR land and which is the roots of today’s problem with NCR land.

One Dayak minister who was overzealous of supporting the amendment described it as ‘a gawai gift for the Dayaks’, while another minister said that the passing of the amendment was “a jewel in the crown of Barisan Nasional".

“In that sense, they are the ones who are mercenaries used by others to kill our own people,” said Baru Bian, Sarawak PKR chief.

Ali Biju expresses concerns on perimeter survey

KUCHING: The much touted perimeter survey is not only confusing the native landowners by the intention of this new initiative but it is also worrying them over the long term legal implications, said Ali Biju, Krian assemblyman.

“Section 6(1) of Land code mentions that any area of state land may be turned into Native Communal Reserve. However, all of the land surveyed now is NCR land.

“Does NCR still exist inside the Native Communal Reserve?

“What might happen to the NCR land outside the perimeter survey?

“Is it going to be the final survey? What is the status of 'pulau galau' and 'pemakai menoa' under this new initiative?” Biju asked during the debate on the state budget.

He quoted Section 6(3) of the Land code pertaining to Native Communal Reserves which clearly states that ‘any such land shall continue to be state land, and the native community for whose use it was reserved or any members thereof acquiring any rights therein shall hold the same as a licensee from the government, .... the issue of any document of title in respect thereof shall be in the absolute discretion of the Director’.

“In plain language, Native Communal Reserve is in actual fact state land,” said Biju.

He said that Section (4) states that if the Minister satisfied that any area under Native Communal Reserve is required for public purpose, that area to be resumed by the government and compensation to be paid as confirmed by honourable minister.

“However, does the government compensate affected natives for their trees, crops and dwellings? Is it possible to register agro-based business entity using Native Communal Reserve as an official address?” he asked.

Biju said that as a result of these confusions, native landowners still prefer their land to remain NCR land as it is now, pointing out that perimeter survey does not enhance the value of NCR land.

“What the native landowners really request for is that their NCR land be surveyed directly under Section 18 of the Sarawak Land Code, not Section 6.

“A good example is the big area of NCR land of the Iban community at Entebu/Selambong/Muton area which was excluded from Lots 489 and 480 Block 18 Awik-Krian Land District gazetted as Native Communal (Agriculture) Reserve (Swk. L.N.50 dated 29.3.2011.

“The government must clarify whether the NCR land outside the Communal Reserve is state land or NCR land,” Biju demanded.

The perimeter survey was initiated just before the State election to survey all NCR land belonging to the natives with an initial fund of RM20 million.

Later another RM60 million was added to the fund.

So far 27 areas in every division had been surveyed, and 30 more areas to be covered by the end of the year.

It is reported that there are 1.5 million hectares of NCR land throughout the state.

Govt trying to hoodwink landowners

KUCHING: A Sarawak PKR leader today accused the BN government of trying to hoodwink and mislead the indigenous communities so as to maintain their electoral support by saying that the declaration of native communal reserves is a confirmation and a statutory recognition of native ownership over their NCR land.

“There is no truth and substance in the statement of the lands and surveys that a declaration of native communal reserves is a confirmation and statutory recognition of native ownership over their NCR land,” said Ali Biju, vice-chairman of Sarawak PKR.

Ali, who is also the state assemblyman for Krian, was commenting on a statement issued by the lands and surveys which dismissed Ali’s earlier claim that the perimeter survey and the declaration of NCR land under section 6 of Sarawak Land Code as native communal reserves will downgrade the NCR land status.

“Contrary to Ali’s claims, rights over the land gazetted as communal reserve land was administered and regulated by the native system of personal law of the native communities concerned,” said the statement.

“This means the acquisition, usage, transfer or transmission of rights and privileges over land, buildings or any structure thereon shall be governed by the customary law of the native communities for whose benefit the communal reserve is declared.

“Lands within a native communal reserve are not held by the natives on trust for the government as alleged by YB Ali Biju.

“The native communities having a native communal reserve have control over their land and will also be able to detect and prevent any unlawful intrusion or encroachment upon their land because the gazette will describe clearly land within the declared native communal reserve and refer to an official plan to define the precise boundaries thereof,” said the statement.

In countering the statement, Ali said: “The BN government is trying to hoodwink and mislead the indigenous communities so as to maintain their electoral support by saying that a declaration and a statutory recognition of native ownership over their NCR land.

“There is no truth and substance in the statement of the lands and surveys,” he said.

Section 6 (3) of the land code which concerns native communal reserves provides that ‘such land (native communal reserves) shall continue to be state land, and the native community for whose use it was reserved or any member thereof acquiring any rights therein shall hold the same as a licensee from the government....’

Ali said: “There is no difference from the presently native in occupation of NCR land without a document of title, that they are ‘deemed to be holding by licence from the government’ according to section 5(1)(i) of Sarawak Land Code.

“The land code is in need of a total revamp, in view of the authoritative judicial interpretation and elucidation of the meanings and scope of NCR, to be of relevance and proper and legal application,” he said.

“The perimeter survey works carried out by the government is a relegation and unlawful confine of the NCR, benefiting only those ‘BNputras’ who are prying on NCR land for their own financial gains, through their control of state government and state machineries,” Ali claimed.

The perimeter survey is a project of Prime Minister Najib Razak to win over the hearts and minds of the native communities.

It was launched just before the state election in April when he announced an allocation of RM20 million to carry out the project.

Another RM60 million was added to the amount during the campaigning period.

There are more than 1.6 million hectares of NCR lands which were hot issues during the state election especially when the Opposition accused the government of taking away the lands and leased them to oil palm conglomerates and timber companies.

Unhappy landowners have sued the government. Currently there are more than 200 cases pending hearing in the High Court.

Another victory for native landowners

KUCHING: The High Court in Kuching last Friday (15 July) declared as null and void the issuance of the Forest Timber Licence No. T/8329 to the Standard Point Sdn Bhd in native customary rights lands which are owned by more than 500 Ibans of Kampung Sungai Merah, Pantu.

The court presided over by Judge Sangau Gunting further ordered that the plaintiffs’ NCR precludes the first defendant (Standard Point Sdn Bhd) and second defendant (Roundtree Timber Sdn Bhd), from impairing or abridging the plaintiffs’ rights and a prohibitory injunction against both companies restraining them from trespassing, entering, clearing, felling and/or occupying the plaintiffs’ said NCR Land.

The court also declared that the 4th defendant (the Superintendent of Lands and Surveys Sri Aman) and the 5th defendant (Sarawak State Government) take cognizance of such NCR and to enter and record in their Land Registry such right and thereafter to issue title to the said Land in accordance with the Sarawak Land Code.

The companies were ordered to pay agreed costs of RM20,000 to the plaintiffs within one month from Friday July 15, 2011.

On the other hand, costs by the Superintendent of Lands & Surveys Sri Aman, the Sarawak State Government and the Sarawak Forest Director were ordered to be taxed by the Court unless parties come to an agreement on it.

The order was made following a legal suit filed by the plaintiffs, Martin Ak Lindang, Biju Ak Nyelang and Buang Ak Jala and 500 natives from two longhouses of Rumah Musih and Rumah Usek, against the two companies, the Director of Forests, the Superintendent of Lands and Surveys Sri Aman and the state government for encroaching into their ‘pemakai menua’ which has been ruled as their NCR land.

The order was also based on consent order that was entered on February 25 before Datuk Linton Albert for a declaration that the plaintiffs had acquired native customary rights (NCR) over the Land known as ‘pemakai menua’.

In their statement of claims filed in 2007, the natives claimed native customary rights over the said land as their ancestors were the first settlers in the area.

In March 2006 the plaintiffs found out that the first defendant had encroached into their land to extract timber destroying their farms, which are the source of their livelihood, and causing extensive damages and soil erosion on their land.

In Friday’s hearing, after six witnesses of the plaintiffs had given their evidence the two parties have decided to settle the matter amicably.

Judge Sangau then recorded a consent judgment and made his ruling for the NCR land case litigated earlier before Datuk Linton Albert (now a judge in the Court of Appeal).

Commenting on the case, See Chee How of Baru Bian Advocates who acted on their behalf said that the native landowners have added their names to the list of proud native plaintiffs in Sarawak who have successfully defended the native customary rights land.

“It is not only another victory, but a great victory of the natives,” he said.

Esther Wong Zhi Hua represented the companies while State Legal Officer Zainuddin Bin Hussaini represented the Superintendent of Lands & Surveys Sri Aman, the Sarawak State Government and the Sarawak Forest Director.

There are more than 200 NCR land cases that are pending hearing at the High Court, and many more are waiting to be filed.

The Baru Bian Advocates alone is handling more than 100 cases.

This victory should serve another eye-opener to the state government which has been accused of taking away NCR land which also includes ‘pemakai menua’ and ‘pulau galau’.

Native Land owners have the last laugh

Pic taken from www.dayaknation.com/blog

The State government has to spend colossal amount of money unnecessarily on court cases and land compensations to be paid to native land owners who have sued the government for illegally taking away their land and leasing them to companies for the planting of trees or oil palm.

Such court costs and compensations for a land case may run to one million ringgit or more as they have to pay for damages to the land, the destruction of fruit trees and cash crops, the demolishment of their houses and loss of incomes. Imagine the amount of money the government has to pay for the 20 cases that the natives have so far won. The amount could be over RM20 million.

Of course the companies which were given the provisional leases have also come up with compensation money.

And there are 203 cases pending in the Court.

The latest victory (on 23 February 2010) involved land owner Agi Anak Bungkong and 196 Iban families of Selezu, Setulai and Sepadok in the Sebauh District, Bintulu when they successfully won their case against the State Government and company which had applied for stay of execution against a High Court decision on 21 January 2010.

The land owners from 15 longhouses were represented by Messrs Baru Bian Advocates and Solicitors, Kuching, while J.C. Fong represented the government.

The land owners had sued the government and company over native customary rights land in and around their longhouses in Selezu, Setulai and Sepadok in the Sebauh District, Bintulu.

They claimed that they had native customary rights over those lands which were not merely lands. Lands, they said, constituted their life, and from where they derived food, valuable medicines, wildlife and natural produce fore their livelihood and sustenance.

They cultivated padi, fruit trees, rubber, cocoa and other essential trees and crops on those lands. Hence, they argued that native customary rights land, comprising lands and forests, were not just a source of livelihood but life itself.

They said that their NCR over their lands was recognised in and by law and expressly acknowledged and honoured by the government of the day.

However, possibly due to an act of recklessness and negligence of the 4th defendants (Land and Survey Department) and the 5th defendants (the State Government) or in disregard of the plaintiffs’ acquired, vested or accrued rights in the native customary land, two provisional leases over Lot 2 Block 4 Selezu Land District and Lot 2 Block 34 Kemena Land District were issued to the 2nd defendants (Lembaga Tabung Haji) and 3rd defendants (Semai Mekar Sdn Bhd) on 2 December 1996.

The said provisional leases covered and included a substantial part of the plaintiffs’ said native customary rights land.

High Court Judge David Wong granted that the plaintiffs have native customary rights over the lands they cleared on 21 January 2010.

The judge ordered that the NCR lands should be ratified and excluded from the provisional leases.

The plaintiffs must be given vacant possessions forthwith, he said.

The judge ordered that damages for the plaintiffs to be assessed 4% interest per annum from the date of encroachment to the date of judgment and 8% from the date of judgment to the realization of the payment.

Costs to the plaintiffs are to be assessed by the Court.

Against this decision, the State Government and company applied for stay of execution.

In today’ hearing, High Court Judge Linton Albert dismissed the government’s application and awarded costs to the land owners.

Following the Court decision, See Chee How of Baru Bian Advocates and Solicitors said the company must completely vacate the land and deliver the same to the plaintiffs.- The Broken Shield

Source: www.thebrokenshield.blogspot.com

Are our YBs a cat’s-paw?

KUCHING - Borneo Researches Institute Malaysia (Brimas) has accused PBB secretary general Stephen Rundi and his party as solely and directly responsible for the loss of the rights of the natives over their land in his own constituency of Kemena

“As secretary general of Parti Pesaka Bumiputra Bersatu, a party claiming to represent and protect bumiputra rights and whose president is the Chief Minister and Minister of Planning and Resource Management, Rundi and his party are directly and solely responsible for the said deprivation,” Mark Bujang, Brimas executive director said in a statement.

The voters in Kemena should ask their elected representative to read and digest the official map or plan called the “Composite Plan Showing Distribution of Native Farming Lands in Suai/Niah/Sibuti” which recorded the boundary of the once primary forested land allocated by the Brooke and the British Colonial Governments to each of the native longhouses in early 1930s.

“The present government of which Rundi has been and is still an active part of it has blatantly disregarded the rights of the natives over the land within their respective boundaries by arbitrarily issuing provisional leases thereon to big companies thus depriving the natives of their allocated lands,” Mark said.

He made the statement in response to comments made by Rundi, who is the Assistant Minister of Public Health.

The State Assemblyman for Kemena had said that native customary rights land were lands that were inherited from one generation to the next before 1958, whereas temuda lands were those occupied after 1958.

He blamed the land owners for not knowing the difference between native customary rights land and temuda (farming land).

“While NCR lands are passed from generation to generation before 1958, temuda lands are the lands occupied after the 1958,” Rundi had said.

Mark said: “From his statement, it is obvious that Rundi is confused and has yet to have a full understanding of what NCR is and its concepts according to the customs and practices of the Ibans and also according to the law.”

“NCR is created over land when natives cleared a forested area for the purpose of occupation, farming, hunting, fishing, and searching for forest produce, establishing pendam (gravesites) as well as using the area as a right of way or for other lawful purposes for the community’s livelihood.

“It has no document of title and it can be passed down from one generation to the next according to customs of the community.

“For the Ibans, lands are closely associated with religious beliefs, cultural practices and traditional farming methods,” Mark said, pointing out that NCR land does not confine to temuda (farming) land, tembawai (sites of previous settlements) and gravesites, but it also includes an area known as ‘pemakai menua’ and ‘pulau’ (forested areas) where they can fish, hunt, collect jungle produce and get their drinking water.

From the legal point of view of Sarawak Land code 1958, he said NCR land has been defined as land where native customary rights has been established through communal or otherwise before 1 January 1958.

NCR land can also be created within a reserve land under section 6 or interior area land over which NCR have lawfully been created pursuant to a permit under section 10 of the Land Code.

Mark said that after 1 January 1958, NCR land can still be created if the native communities still occupy or an individual still belongs to his community who are occupying their ‘pemakai menua’.

NCR could also be established, he said, when natives clear virgin jungle, and plant fruit trees, farming, establishing graveyard, occupying cultivated land or using land for rights of way or any other lawful method under Section 5(2) of the Land Code 1958; and when they obtain permit under section 10 of the Code to create their NCR.

Mark said Rundi should read a number of Court decisions especially the ones on Nor Anak Nyawai on the Borneo Pulp Plantation Sdn Bhd, on Madeli bin Salleh and the recent High Court decision on Agi Anak Bungkong against Land and Survey and the State Government.

“We also call on Rundi to refer to reports by Suhakam entitled Legal Perspectives on Native Customary Land Rights in Sarawak,” he said, expressing the hope that the assistant minister would not make nonsensical comments in the future.

Are they not making a laughing stock of themselves for their stupid statements or as a cat’s-paw by Pelita to grab NCR lands? - The Broken Shield

Source: www.thebrokenshield.blogspot.com

Najib's assurance on NCR land 'too little, too late' ~ Malaysiakini

Taken from http://www.malaysiakini.com/news/106904

Sarawak’s leading NCR lawyer Baru Bian has described Prime Minister Najib Tun Razak’s assurance that the Sarawak Barisan Nasional government will not take away NCR land from the Ibans as coming “too little and too late”.

“The fact and the truth is that the people’s land, in particular the native customary rights land have already been taken, grabbed and snatched under the BN government," he said in a press statement to Malaysiakini today.

A local English daily The Borneo Post quoted the prime minister as saying in its front page report on June 19 that the BN government will not take away the native customary landsof the natives of Sarawak.

The prime minister was also quoted as urging the people to “... have confidence in the Barisan Nasional government. We have no intention of grabbing anybody’s land. The Ibans should not worry. The BN government will not snatch your property.”

Baru, who is also a member of PKR political bureau and supreme council, said that the fact that Najib had to make the statement shows that the people, in particular the natives, are complaining that their NCR lands had been taken away summarily all these years.

He added: “The fact that my legal firm is handling over one hundred cases of NCR - related cases show proof that NCR land have been taken, grabbed and snatched all these years, under the BN government, headed by the present Chief Minister Abdul Taib Mahmud.”

Baru said despite the landmark decision in the case of Nor Anak Nyawai which was affirmed by Madeli Salleh’s case in the Federal Court, the present state BN government of Sarawak refused to accept the said court’s decision that NCR land includes not only “temuda” (secondary forest) but it extends to their “Pemakai menua” (territorial domain) and “Pulau” (reserved or preserved virgin forests).


Return NCR land to the people

“This refusal to accept the court’s decision is reflected in the state Attorney-General’s chambers’ defences representing the state government, in the cases now pending hearing in the various High Courts throughout the state of Sarawak," he pointed out.

He urged the prime minister to order, instruct and/or at least advise the present Sarawak BN government through the chief minister to return to the people all the NCR land that had been “taken, grabbed and snatched” summarily all these years by revoking timber licences, provisional leases and replanting permit or other licences that includes and/or encroaches onto NCR lands.

Secondly, order that an independent Land Commission of Inquiry be set up to investigate all these violation of claims of NCR lands in Sarawak, including the abuses by the police force of complainants relating to NCR disputes with companies, to show to the people of Sarawak, and Malaysian at large that the prime minister walks the talk.

Baru said this Land Commission of Inquiry should also look into all the hundred over cases now pending in the High Courts in Sarawak, thus helping in the backlog of cases in the High Court.

“If the above proposal is not done within one month from today, I am afraid these statements are mere political gimmicks just to mislead the people, in particular the natives of Sarawak that this BN government is now concerned with their affairs and problems", he said, adding that these are but signs of the impending state general election now looming in the horizon.

It was also reported that “the prime minister said from his discussions with the chief minister, he was convinced that the state’s model of native customary rights land development would ensure a better future for the Dayaks, particularly the Ibans”.

The Orang Ulu NCR lawyer said the state’s model of native customary rights land development referred to is the “new way” of developing NCR land popularly referred to as “The New Concept” or “Konsep Baru” - the idea of the present chief minister.


No confidence in 'Konsep Baru'

Under this “Konsep Baru”, the landowners would have 30 per cent shares equity, the developer 60 per cent and the state government 10 per cent.

“I am sad to say that the very first project launched in Kanowit based on this concept is a total failure. After 10 years of its launching, the developer is still unsure whether they can break-even in the years ahead thus causing much anxiety and trepidation to the natives who were lured into participating in this project years ago.”

He had been instructed by some of these natives to take legal action against the state government to protect the natives’ right over their NCR lands, as they have no confidence in this so called “Konsep Baru”.

“I dare say in the light of my knowledge of these issues, the statements made by the prime minister are mere political rhetoric, unless and until we can see in one month’s time, my suggestion referred above are implemented; i.e. the return of NCR lands that had already been taken away and the setting up of a Land Commission of Inquiry to investigate these complaints of violation of NCR land in Sarawak.”

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PRESS STATEMENT

It was reported as front page news in the Borneo Post on the 19th June 2009 that the BN Government will not take away the native customary lands of the natives. The PM was quoted to urge the people to “...have confident in Barisan Nasional (BN) government. We have no intention of grabbing anybody’s land. The Ibans should not worry. The BN government will not snatch your property.”

In reply I wish to say that this assurance if true, come too little too late. The fact and the truth is that the people’s land, in particular, the natives’ customary lands had already been taken, grabbed and snatched under the BN government. The fact that the PM made this statement today shows that the people in particular the natives are complaining that their NCR lands had been taken away summarily all these years.

The fact that my legal firm is handling over one hundred cases of NCR related cases show proofs that NCR lands had been taken, grabbed and snatched all these years, under the BN government, headed by the present CM Pehin Sri Abdul Taib Mahmud. Despite the landmark decision in the landmark case of Nor Anak Nyawai which was affirmed by Madeli Salleh’s case in the Federal Court, (the highest court in Malaysia), the present State BN Government of Sarawak refused to accept the said Court’s decision that NCR Land includes not only “temuda” (secondary forest) but it extends to their “Pemakai menua” (territorial domain) and “Pulau” (reserved or preserved virgin forests). This refusal to accept the Court’s decision is reflected in the State Attorney-General’s Chambers’ defences representing the State Government, in these cases now pending hearing in the various High Courts through out the State of Sarawak.

I therefore urge the Honourable Prime Minister, to order, instruct and/or at least advise the present BN State Government through the CM Pehin Sri Abdul Taib Mahmud to return to the people all the NCR lands that had been “taken, grabbed and snatched” summarily all these years by revoking timber licences, provisional leases and replanting permit or other licences that includes and/or encroaches onto NCR lands. Secondly, order that an independent Land Commission of Inquiry be set up to investigate all these violation of claims of NCR lands in Sarawak including the abuses by the police force of complainants relating to NCR disputes with companies, to show to the people of Sarawak, and Malaysian at large that this PM walks his talk. This Land Commission of Inquiry should also look into all the hundred over cases now pending in the High Courts in Sarawak, thus helping in the backlog of cases in the High Court. If the above proposal is not done within 1 month from today, I am afraid these statements are mere political gimmicks just to mislead the people in particular the Natives of Sarawak that this BN Government is now concerned with their affairs and problems. I believe these are but signs of the impending State General Election now looming in the horizon.

Lastly, it was also reported that “The Prime Minister said from his discussions with Chief Minister Pehin Sri Abdul Taib Mahmud he was convinced that the State’s model of native customary rights land development would ensure a better future for the Dayaks, particularly the Ibans.”

I believe that the State’s model of native customary rights land development referred is the “new way” of developing NCR Land popularly referred to as “The New Concept” or “Konsep Baru” the ‘brain-child’ of the present CM. Under this ‘Konsep Baru’, the landowners would have 30% shares equity, the developer 60% and the State Government 10%. I am sad to say that the very first project launched in Kanowit based on this concept is a total failure. After 10 years of its launching, the developer is still unsure whether they can break-even in the years ahead thus causing much anxiety and trepidation to the natives who were lured in participating in this project years ago. I have been instructed by some of these natives to take legal action against the State Government to protect the natives’ right over their NCR lands, as they have no confidence in this so called “Konsep Baru” or as the PM said the “State’s model of native customary rights land development” referred in the news report.

I dare say in the light of my knowledge of these issues, the statements made by the Honourable PM are mere political rhetoric, unless and until we can see in one (1) month time, my suggestion referred above are implemented; i.e. the return of NCR lands that had already been taken away and the setting up of a Land Commission of Inquiry to investigate these complaints of violation of NCR over lands in Sarawak.

So Honourable PM, prove to us natives of Sarawak, that you walk your talk in these matters!

Dated this 20th June 2009

MR. BARU BIAN

NCR LAWYER CUM PKR POLITICAL BUREAU & SUPREME COUNCIL MEMBER

Our wonderful gift for 2009 Gawai Dayak

Many do not realise that our wonderful gift for our Gawai Dayak 2009 is the recognition by the Federal Court of our Native Customary Rights (NCR) over our ancestral land, and the Court has clearly defined that NCR land includes 'Pemakai Menua' (communal land boundaries), ‘Pulau Galau’ (communal forests), ‘tembawai’ (old longhouse sites), ‘pendam tuai’ (old graveyards), farm land and ‘temuda’ land.

The decision of the apex court which was made early in May 2009 is going to open a floodgate of legal actions against government, which leases our land and companies which plant oil palm on our land.

Not only they took away our land by force, but they also destroyed our fruit trees, rubber and pepper gardens, padi fields, destroyed our communal forests, communal land boundaries and graveyards. Some time our longhouses were also destroyed. For all this, we must seek compensations as well as the return of our NCR land.

Thanks to our lawyers and Sarawak Dayak Iban Association (SADIA) for their courageous efforts in fighting for our NCR land. Finally we triumph. And for this Gawai Dayak we have every reason to rejoice and to be thankful.

To all readers of The Broken Shield, we wish to say:

“Selamat Gawai Dayak, gayu-guru, gerai-nyamai, chelap-lindap nguan menua, betuah-belimpah. Sida ke dara bulih laki, sida ke bujang bulih bini, beranak betelesak ngambika bala kitai Dayak maioh ka agi di menua Sarawak”.

We will be going to our village for our Gawai and any reader happens to pass by is welcome to our humble house at Kpg. Sungai Samabang, Jalai Punda, Simunjan. – The Broken Shield

Natives welcome with Federal Court's decision ~ Malaysiakini

Taken from http://www.malaysiakini.com/news/103985

Natives welcome with Federal Court's decision

The recent Federal Court’s decision on native customary rights (NCR) land will open a floodgate of legal actions against the Sarawak state government, a prominent NCR land lawyer, Harrison Ngau said today.

Ngau was commenting on the decision of the Federal Court which last Tuesday rejected the application of the Sarawak government to review the decision of the same court, i.e. earlier Federal Court, but comprising a different panel.

Among others, the Federal Court accepted the law on NCR land as stated by justice Ian Chin in the High Court in the Nor Anak Nyawai case in which he held inter alia that NCR land includes both cultivated or cleared land, for example "temuda", gardens, and burial grounds, former longhouse sites, and communal forests or "pulau galau" in Iban within the communal land boundary or antara menua of a longhouse.

In dismissing the said application, the Federal Court held that the earlier panel of the Federal Court did not commit any error of law or fact which requires or justifies a review.

“The significance of the Federal Court decision is that the NCR land of the natives covers or comprises all the land within the communal land boundary of their longhouses, i.e. both cultivated and forested areas therein.

“Licences for logging and planted forests and leases for oil palm plantations issued by the state which overlapped with the land within the communal land boundary of the longhouses do not or cannot extinguish the prior NCR of the natives.


Natives can sue the government

More than one million hectares of land, the bulk of which is NCR land, have been leased out over the past 20 years to many companies and state agencies.

“As such the natives can sue the state government for lawfully interfering or impairing their native customary rights and stop or blockade the companies issued with the licences or leases for encroaching onto their NCR land,” Ngau said.

He said the decision would also have some bearing on 203 NCR land cases which would start their hearing from September this year.

He suggested that the Sarawak government should now start gazetting the communal land boundary of the natives throughout Sarawak, what the Brookes and British governments did during their times.

During the Brookes times they even issued an official circular N0. 12 of 1939, directing district officers and land and survey department to record communal land boundaries of the natives. This had resulted in the compilation of the record of such land boundaries of the longhouses in the Baram district in the registrar of land boundaries now kept at the district office in Marudi, Baram.

Rights of natives over their land restored

Ngau said: “The native courts have upheld the land boundaries in many cases. Unfortunately, the Sarawak government failed to respect the NCR land of the natives as what the Brookes and British did. That resulted in the tragedy befalling the natives in Sarawak until today.“With this decision of the Federal Court, it is imperative for the Sarawak government to immediately give effect to it and stop arbitrarily issuing licences or leases over NCR land within the communal land boundaries,” he said.

Another NCR land lawyer, Baru Bian said that he was absolutely delighted as the decision of the Federal Court had finally sealed the finding of the High Court in the landmark case of Nor Nyawai that NCR land was not only confined to temuda land, but it included “pemakai menua” (territorial domain) and “pulau galau” (communal forests).

“This concept is now settled. This is because Nor Nyawai says common law recognises the pre-existence of adat and custom. Now it is a question of adducing evidence,” he added. In welcoming the Federal Court’s decision, the Sarawak Dayak National Union (SDNU) was happy that the Federal Court had put back the rights of natives over their land.


Be sensitive to needs of natives

Its publicity officer, John Anthony Brian, said that SDNU urged the NCR land owners to take this opportunity to move forward and develop their land.

“We hope the Dayaks can establish their own investment vehicle to develop their land into an economic enterprise so that we do not blame the government any more,” he said, and urged the government to be sensitive to the needs of the natives and support their efforts to develop their land in order to eradicate poverty.

Meanwhile, efforts to get the State Minister of Land Development James Masing and Minister of Rural Development, Alfred Jabu anak Numpang, who is also chairman of the NCR task force, to response to the Federal Court’s decision were unsuccessful.

Being Dayaks, both ministers should be the right persons to comment on behalf of the state government on the implications of the Federal Court’s decision.

It is understood that the state legal counsel, J.C. Fong, who represented the state government had briefed the chief minister Abdul Taib Mahmud on the decision.

Meanwhile, NCR land lawyers and NCR land owners are watching closely what the Taib government’s next move will be to avoid being sued.

S'wak gov't defeated in landmark NCR ruling ~ Malaysiakini

Taken from http://www.malaysiakini.com/news/103680

The Federal Court has upheld the concept of native customary rights (NCR) to land as including not only one class of such land called "temuda" (cultivated land), but also "pulau galau" (communal forest) and "pemakai menua" (territorial domain).

The apex court delivered its ruling today in Kuching, in an application by the Sarawak government in a case initiated by local Malay Madehi Salleh to claim NCR rights over former Shell concession land in Miri.

Lawyers dealing in NCR cases were quick to point out the implications of the decision for some 200 land cases filed to date against the state government and companies that have obtained leases mainly for plantation and logging activities.

So long as NCR claimants can provide sufficient evidence to support their claims, logging and plantation companies may now find themselves in a quandary unless they are prepared to negotiate.

Madehi had taken the state government to court in 2007 over his rights to 6.6 acres of land and won the case.

However, the state government successfully appealed the decision in the Court of Appeal, following which Madehi turned to the Federal Court and won his case in October 2007.

The court recognised the pre-existence of NCR before the coming into force of any statue or legislation, in particular the Rajah Order of 1921. It said the reservation of the land under the Rajah’s Order for Sarawak Oilfields Ltd (SOL) did not have the effect of extinguishing NCR to the land.

There was no provision whatsoever in the Rajah’s Order that extinguished Madeli’s NCR to his tract of land, the judges said, noting that all it did was to reserve the land for SOL.

Furthermore, the Federal Court said native rights to occupy untitled land in accordance with customary laws subsisted in an area reserved for operation of SOL. Individual rights of natives were the same as communal rights, it added.

Application dismissed

The Sarawak government, unhappy with the decision, then applied to the Federal Court to review its own decision.

Today, however, the court disagreed that the applicants had met the threshold requirement and dismissed the review application with costs.

The Federal Court’s quorum comprised the Chief Justice of Sarawak and Sabah Richard Malanjun, Hashim Yusuf and Zulkifli Ahmad Makinudin.

Appearing for the applicants (Sarawak government) were State Legal Counsel JC Fong and his assistant Safri Ali. Miri-based lawyer Mekanda Singh Sandhu and his son Sathinda represented Madehi.

Sathinda told Malaysiakini later that the judgment can now be applied to all NCR land cases after this.

Millions of hectares of land have been leased out over the past 20 years to many companies and state agencies.

The Federal Court ruling re-affirmed a similar landmark finding in the Nor Nyawai & Others v Borneo Pulp and Plantation case in Bintulu in 2001.

Prove the land is yours, says Awang Tengah

Awang Tengah says that the government is recognizing native customary rights (NCR) lands as long as the landowners can come up with proof or evidence and the piece of land fulfills the existing land conditions.

“The evidence and conditions must be based on the research and record kept by Land and Survey Department,” the second minister of planning and resource management said.

He cited an agricultural development project purportedly to be implemented on the site where a longhouse, Rumah Chang in Niah, had been built.

Certainly we can prove that land belongs to the landowners based on the following pieces of evidence :-

>> The existence of pendam tuai (old graves) before 1 January 1958;

>> The existence of tembawai ( the sites where longhouses had been built) before 1 January 1958;

>> The existence of fruit trees, rambutan, durian, engkabang, rubber trees, (some of these trees are more than 100 years old);

>> The owners have been farming the land from generation to generation even during the Brooke regime (Tuai Rumah and Penghulu can bear witness. But the problem is that the Tuai Rumah and Penghulu have been warned by the government not to simply endorse such land as NCR land belonging to a certain person. The other problem with Tuai Rumah is that a number of them have become land brokers for certain YBs as in the case of Bau and in Lundu);

>>“Pemakai menoa” and “Pulau Galau” have now been declared by the Federal Court as part of NCR land and can be used as evidence of the existence of NCR land.

It must be admitted that it is not easy to reconcile our proofs with the evidence and conditions on the research and record kept by the Land and Survey Department.

>> Firstly, the department, if it is against us, will say that there is no evidence or record kept by them.

>> Secondly, the department may erase the evidence and record, so we will still lose to them.

From now on, we should wherever possible survey our own land using the GPS (Global Positioning System) and submit the surveyed land to the Land and Survey Department.

Although the government does not recognize it, we have at least a piece of evidence and the Court, however, recognizes our rights in the land. – The Broken Shield