PRESS STATEMENT
The purpose of this Press Conference is to announce
STAR Sabah’sstand against the BN State Government’s intention to abolish native
rights. The native customary rights of indigenous
people are recognized and are to be protected and have been universally adopted
of late by many countries under the United Nations Declaration of Rights of
Indigenous People.
The recent statement by the Lands and Surveys
Director that NCR does not exist after the enforcement of the Sabah Land
Ordinance, 1930 is not unexpected as the present government has failed to
resolve NCR problems in the State.
The Director cannot be blamed for being used as the
mouthpiece of the BN government and merely echoed the previous statement of the
State Attorney General.
As can be seen from Pitas to Pensiangan and from
Sukau and Kalabakan to Sindumin, the State government has caused widespread
misery and injustice to the local natives.
It is well documented that many lands have been alienated to companies
in the tens of thousands of hectares while land applications of natives of 10
or 15 acres are not processed for many, many years.
The natives have not only lost their NCR and land
rights but also their livelihood to these unscrupulous companies and their
inhumane owners. And in many instances,
many of these companies even engaged illegal immigrants and foreign workers to
demolish the homes and destroy the crops of these natives and to chase them
from their very own land, very often, in full view of and sometimes tacit
support of the police and enforcement agencies.
Despite the many warnings and incidents of violence
by these foreigners, it is a matter of time before the real bloodshed will
happen. Yet, the State government has
done little to assist the poor and suffering natives.
In hindsight, it is not surprising considering that
the top 4 officers in land administration, from the chief executive to the
forestry, the lands department and the top legal officer in the State are
helmed by non-natives. In a recent
posting, the latter 3 were even called the 3 stooges of the power that be. One wonders what will happen in such a meeting
to discuss NCR matters, where is the voice and conscience of the local natives?
To rub salt into the wound, a KDM is only deemed
fit to look after animals and wildlife.
And add on the rumours of people of a certain race waiting in the late
afternoons to attend to their land applications in the Lands Department.
We leave it to the people to judge on the
matter.
On a more sombre mood, drastic reforms in the land
and NCR laws and administration are urgently needed to protect the natives, who
were the original settlers since time immemorial and long before Sabah formed
MALAYSIA with Malaya in 1963.
The British colonial masters have always respected
the native customary rights and their right to life depending on their land for
their livelihood. This legacy can be
seen in the administration of land law and the Sabah Land Ordinance (Cap. 68)
that was passed in 1930.
The British not only deemed it fit to respect NCR
but also made numerous provisions to protect such native rights as can be seen
throughout the Land Ordinance.
For instance, in the definition of “State land” in
Section 4, it is expressly provided that “State land” excludes lands which “are
not and may not hereafter be lawfully occupied by any person…”. The word “hereafter” clearly refers to
after the enforcement of the Land Ordinance.
Clearly excluded from “State land” are lands lawfully occupied after the
Land Ordinance.
Only natives with a lawful claim to NCR can
lawfully occupy and obtain legitimate ownership of the land. NCR is clearly defined in Section 15. Obviously, a non-native cannot claim for NCR
no matter how long he or she is in occupation as such occupation is not lawful.
The definition of “State land” clearly contradicts
the statement of the Lands and Surveys Director that NCR did not exist after
the Land Ordinance in 1930. The Director
is clearly wrong and ill-advised.
If the Director’s statement is correct, there is no
necessity for the numerous provisions on native rights, NCR and procedures to
protect such rights. For instance, in
Section 13, upon the receipt of any land application, it is the duty of the
government to publish a notice calling upon any claimant to NCR in such land
and an enquiry is required to establish that no NCR exists on the said
land.
Judging from the numerous overlapping claims of NCR
and claims of companies that have been alienated land occupied by natives, it
is obvious that the government has failed to comply with Section 13.
The Director is also wrong to state that the
natives be made to rely on land applications for their claims to land and that
one of the consideration of natives’ land applications is the basis of NCR such
as in Section 15. In Section 14, there
is no need for any native to submit a land application as what is required is a
claim to NCR which shall be taken down by the headman or the Collector and
shall be decided by the Collector. This
is reiterated in Sections 81 and 82.
It is wrong for the Director to impose such onerous
procedure and conditions before a native can obtain a native land right. Judging from the Land Ordinance, it is more
of a verification and identification of the NCR rather than a formal land
application. A NCR is a birth right of
the natives.
A land application by any native to any land which
is not occupied or claimed by him as NCR is a separate issue as any native like
any other non-native or company is entitled to apply for land and be alienated
such land. Such a native is not obliged
to prove his NCR rights before his land application to land which is not occupied
by him to be approved and alienated.
To overcome the furore of the Director’s statement
and to calm the anxieties of the natives,STAR Sabah calls upon the government
to respect and restore the rights of natives to NCR and native lands and
prioritize land for all Sabahans based on STAR’s policy and vision “NCR FIRST,
SABAH LAND FOR SABAHANS FIRST”.
In addition, the government must also carry out
administrative reforms in land administration in the State.
The claims of the natives to NCR must be
de-centralized to the Collector of Land Revenue (and by extension to the
Assistant Collector of Land Revenue as defined in Section 4 of the Land
Ordinance) as provided in Sections 14 and 82.
The government and the Director must obey the Land Ordinance and comply
with it fully.
The State government should also establish a LAND
AND NCR COMMISSION to safeguard the rights of the natives on NCR and their land
rights and to protect the integrity of the current holders of public
office. If not, the government must
replace the land and forestry directors with natives until such time
meritocracy is fully implemented and any Sabahan is able to hold such positions
with any adverse inference.
A SABAH NATIVE LAND FOUNDATION should also be
established to safeguard and protect native lands and the rights of the natives
to their native lands.
If the government is truly concerned and wished to
safeguard the land rights of the natives, the government should declare areas
to be designated as “native reserves” under Section 78 of the Land
Ordinance. If the governments in the
Peninsular can designate lands to be Malay Reserves, this can be replicated in
Sabah to safeguard future generations of natives to native lands.
The integrity and sincerity of the present
government including the BN components and their native leaders is highly
questionable considering that lands can be set aside for grazing reserves but
are not set aside as native reserves.
Section 79 clearly provides for land to be set aside as native reserves
for the purpose of providing land for future cultivation by natives. This provides security for future
generations of natives. By their
actions, the government is treating the natives worse than cattle, cows and
goats.
The next question that begged to be answered is
whether the government is on a “KetuananMelayu” or “Malaya” agenda on behalf of
their political masters.
When Sabah’s founding fathers agreed to the merger
with Malaya, it was clearly spelt out that the indigenous natives of Sabah and
Sarawak would be equal to the Malays in the Peninsular. This is clearly entrenched in Article 153 of
the Federal Constitution and land rights were clearly reserved for state
control as seen in the Federal Constitution, the BatuSumpah in Keningau and the
separate Land Ordinance in Sabah and Sarawak.
Why is it now that the government is adopting a
policy similar to the National Land Code, 1965 in Peninsular where native
customary rights are not recognized unlike the Sabah Land Ordinance? In Peninsular, the poor Orang Asli, the
indigenous natives are deprived of their lands and very often the lands grabs
are by the Umno/BN politicians and their cronies.
In the present system, the authority and decision
of the Director in alienating lands to anyone under Section 9 of the Land
Ordinance cannot even be appealed as provided in Section 41.
In Sabah, we must stop the deterioration
immediately. If the government feels
that there is any doubt or ambiguity in the Land Ordinance as to the existence
of NCR of the natives, steps must be taken immediately to pass the necessary
amendments to the Land Ordinance and the Sabah State Constitution to
specifically recognize and implement NCR and native rights. This can be done quite easily as the BN
controls 57 of the 60 state seats and for certain the other 3 opposition
members are likely to support such an amendment.
If STAR Sabah is part of the government, it will
certainly propose such measures to clearly and unequivocally recognize native
land rights and NCR and to prioritize Sabah’s lands for Sabahans as spelt out
in its Land Reforms Masterplan.
It is wrong for the
Government not to give priority to natives and Sabahans in land
alienation. The Director of Land in
January 2012 disclosed that out of 2.1 million hectares of land available for
alienation, the State had already alienated about 1.9 million hectares of which
only 31% was alienated to natives and the other 69% to others.
From the State economical point of view, it does
not make sense for lands to be alienated to outsiders who do not invest their
profits derived from Sabah’s lands and such profits are then taken to the
Peninsular and utilized there to generate further economic growth.
For
instance, FELDA was alienated some 306,000 acres of land in Sabah but very
little benefit has been given to local Sabahans let alone natives. The government-linked Sime Darby owns a
54,278 hectares plantation land in Sabah while 2 other public-listed companies
from the Peninsular owned 107,000 hectares and 40,359 hectares in Sabah
respectively. These 3 companies owned a
total 201,637 hectares excluding Felda’s holding.
The profits per hectare for the plantations
declared by the public companies for 2011 were RM11,075
and RM9,783. Even assuming the
lower of the profits declared, a total profits of RM1.972 billion were derived
from Sabah for the 201,637 hectares and this did not even include profits from
processing activities.
If the 201,637 hectares were to be distributed 5
hectares to each family, a total of 40,000 families will each enjoy a profit of RM49,300 per family each year which
excludes labour costs. Imagine what
economic spin-offs and multiplier effects the profits can generate for the
Sabah economy, let alone the eradication of poverty.
A SABAH LAND TRIBUNAL should also be established to
look into, adjudicate and resolve the numerous land problems and disputes. The natives should not be made to wait and
spend unnecessarily to litigate their claims for NCR in the civil courts where
at the appeal stages, the judges from outside Sabah, who are not familiar with
native land rights and more familiar with the Peninsular National Land Code,
outnumber the local judges.
STAR Sabah proposed that Land Administration in Sabah be reformed and
be administered as in the Chart below:-
As for communal titles, the government should not
rush and give out communal titles as though it is done for political
campaigning in view of the forthcoming general elections.
They appear nothing more than to appease the anger
of the local natives who will vote against the BN government and their leaders
who have alienated their NCR lands to outside companieswho in turn have
destroyed their crops, plants, homes and evicted them from their own land.
Communal titles should only be given additionally
as native reserves where they are occupied.
In the communal titles given, the government has failed to consider the
legitimate claims of NCR by the natives some of whom have been there for
several generations and pending approval of their NCR claims for years, some
even decades.
With these communal titles are issued, the
legitimate claims and NCR ownership of these natives are not only ignored but
also extinguished and cancelled. It is
not the right thing to do against the natives and you can expect the government
to be punished at the next general elections.
In conclusion, it is
clear that the native customary rights and native land rights need to be
clearly recognized and protected. The
reference to Section 88 is misconceived as Section 88 merely reinforces the
fact that after the coming of the Land Ordinance, the system of registration is
to be put in place and it does not extinguish NCR per se but require new title
and new dealings to be on the basis of registration for any land except land
under NCR without documentary title as at the time of the dealing or
registration.
If the intention of the
legislators of the Land Ordinance was to extinguish or abolish NCR and native
land rights, the wordings of the Land Ordinance would have been very different
in form and it would have clearly left out native customary rights totally.
In view of the erroneous
and misleading statements of the Director of Lands and Surveys and by the State
Attorney General previously, the onus is now on the State government and its
local BN components to prove that it is not planning to abolish the native land
rights and NCR.
Apparently, from the
numerous land alienations to companies overriding the NCR claims of the natives
all over the State, it appears to be the policy of the government to abolish
the native land rights and NCR and not an erroneous mistake by the Director.
The BN government needs
to change the policy which is clearly contrary to the Land Ordinance.
And if the BN government
does not make the necessary reforms and changes in the land policy, then it is
only right for Sabahans especially the natives to unite and vote out the
Umno/BN government in the coming general elections since the government is
unable to implement and protect the land rights of the natives.
Datuk Dr. Jeffrey Kitingan
Chairman
STAR Sabah
02 October 2012
