Truck torched as ‘warning’ to natives

Local native NCR landowners protesting against the government for issuing provisional leases (PLs) to oil palm companies will not cower in fear.

SERIAN: A 4WD vehicle belonging to a local Iban native leader was torched early yesterday morning in what is seen as a “warning” of worse things to come if the natives persisted with their dispute over 5,500 acres of native customary rights (NCR) land, which the government had handed over to three oil palm companies.

The three companies which have been given provisional leases (PLs) over the land to plant oil palm are Memaju Jaya, United Team Trade and Tetangga Arkab.

One of the companies is allegedly owned by former Kedup assemblyman, Frederick Bayoi Manggie. The native landowners alleged that their land was part of a deal for Manggie to step down as elected representative. His place has since been taken over by Martin Ben.

The torched RM76,000 Hilux truck belonged to Micheal Lung who has been at the forefront defending the rights of the 200 affected landowners.

According to Luang, his vehicle was parked near his house at Kampung Tanah Mawang, about 20km from Serian.

“I was wakened up early this morning by the sound of fire and went to check. I was shocked when I saw my Hilux parked near the house burning and saw someone leaving the place in a car.

“It is obvious that these people were trying to intimidate me because I am one of the leaders who are defending our NCR land.

“I can tell you we will not be cowed by this act of vandalism. Instead, we will become more resolute in defending our NCR land,” he told FMT, adding that their great grandparents had created this NCR land for them and no one had the right to take it away.

Luang has since lodged a report at the Serian police station.

Legal recourse

Several angry leaders and landowners turned up at Luang’s house upon hearing of the incident to discuss a number of options open to them, one of which was through the legal means.

“We have contacted our lawyers,” Luang said.

He added that a few weeks ago officials from the Land and Survey Department contacted them and urged the community to “cooperate”.

“They told us the government could not do anything now since the PLs have been given to the companies to plant oil palm,” said Luang, who was one of the Iban natives from several longhouses in Balai Ringin who carried out camped-in protests at the car park of the Land and Survey headquarters in mid-May this year.

More than 70 men and women camped three days and nights at the car park until the Land and Survey director agreed to meet with them.

Initially, the director refused to meet with them until the protests caught the attention not only of local and national media, but also of international organisations.

Their protests also attracted the attention of both the opposition and the Barisan Nasional leaders.

Kota Sentosa assemblyman Chong Chieng Jen raised the matter in the State Legislative Assembly, which was sitting at that time.

“The delaying tactics by the Land and Survey Department is not helping the natives. This is the time when the people are standing up for their rights to their land that the government has taken away.

“They are going to stay here until the problem is resolved.

“We call on all those who face similar problems to come and visit them in order to show solidarity with them,” Chong, who is Sarawak DAP secretary, had said.

Change the policy

Chong said this was not the only group that had suffered. Throughout Sarawak, there are hundreds of thousands of natives whose lands have been taken away from them.

“This is very unfair on the part of the state government which only turns a blind eye to their problem. Only through change of policy can these problems be solved,” he added.

The natives first brought their case to the Land and Survey director in January this year, asking him to cancel the PLs on their land.

On March 17, the same group again tried to meet the director. Again, the director refused to talk to them. Instead, he sent a junior officer to deal with them.

On May 14, they wanted to see the director for the third time. Again, the director refused to meet them.

A junior officer was sent to talk to them, saying that their problems were yet to be solved.

Unhappy and angry, the natives numbering 70 comprising men and women refused to go home and set up camps in the car park in front of the Land and Survey Department to show their protest.

The High Court decision has wide implications

By Joseph Tawie

KUCHING: The Kuching High Court is again made another land mark decision when it rules out on 20 February 2011 that any joint venture agreement between a non-native and native in oil palm plantation is in contravention of Section 8 of the Land Code.

The decision of the court has wide implications on joint venture agreement between non-natives and natives in the oil palm plantations.

There are more than 20 JV companies with natives may be affected by this ruling.

The Pantu natives have sued LCDA, Pelita Holdings Sdn Bhd, Tetangga Arkab and the state government of Sarawak as first, second, third, and fourth defendants respectively on behalf of themselves and 90 others.

The plaintiffs who are ethnic Ibans, natives of Sarawak, claim to be entitled to native customary rights over land in an area described as ‘the disputed are land’ in the Pantu Land district.

High Court Judge Linton Albert who delivered the judgment said that their joint venture agreement was in contravention of Section 8 of the Land Code because neither Tetangga Arkab Sdn nor TETANGGA was subsequently declared a native because it is a principle of antiquity that things invalid from the beginning cannot be valid by a subsequent act.

He said: “Section 8 (a) of the Land Code provides that ‘a person who is not a native of Sarawak may not acquire any rights or privileges whatever over native customary right.

“The parasitic role of Pelita Holding Sdn Bhd, which had nothing to begin with has relegated the landowners into absolute obscurity under the Principal Deed and as the landowners are total strangers to the joint venture agreement, the defendants cannot be heard to say that Tetangga Arkab and TETAGGA had nor acquired rights and privileges in the native customary rights land that they have undertaken to develop into an oil palm plantation.

“How else defendant witnesses whose sole interest was to do business, be attracted unless TASB and TETANGGA had rights and privileges over native customary rights land which the latter would in turn into an oil palm plantation under the joint venture agreement,” he said.

Earlier the judge said that irrespective of the cleverly devised legal mechanism and legalistic language which constituted the Principal Deed and the joint venture agreement, they are mere fig leaves too scanty to conceal their violations of Articles 5 and 13 of the Constitution because the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero.

The natives, he said, have been deprived of their native customary rights land which is a source of their livelihood and lost the rights to their property which are violations of Articles 5 and 13 of the constitution.

“This is patently demonstrated by following aspects of the Principal Deed which is briefly set out for emphasis and at the risk of repetition. They are these. Firstly Pelita Holding Sdn Bhd was to receive and collect the benefits of the development of the native customary rights land into an oil palm plantation, not the owners;

“Secondly, the commercial development of the native customary rights land into an oil palm plantation was to be carried out by a joint venture company formed by Pelita Holding and Tetangga Arkab Sdn Bhd, a company exclusively chosen by Pelita Holding under a joint venture agreement in respect of which the land owners are not even a party to.

“Thirdly, the native customary rights lands are immediately amalgamated and title is to be issued in the name of the joint venture company and the landowners would have no beneficial, legal, equitable or caveable interest in the land to be issued with title,” he said.

Albert said: “And one can go on and on to illustrate how the terms of the Principal Deed have stripped the landowners of their rights in every conceivable way and reduced those rights into nothingness.

“The fact that the landowners were not parties to the agreement between Pelita Holding and the company chosen by Pelita Holding, Tetangga Arkab under which it was agreed for the commercial development of the natives rights land by TETANGGA meant that the landowners’ rights in and over the oil palm plantation was also definitely zero.

“The joint venture agreement was also in contravention of Section 8 of the Land Code,” he added.

The judge said that the illegality was so patently clear as to afford no justification for disregarding it.

“A wrong no matter how artfully disguised as the Principal Deed and the joint venture agreement are, cannot overwhelm the fact that thyey are in violation of Articles 5 and 13 of the constitution and Section 8 (a) of the Land Code.

“It matters not that the landowners have been paid some dubious money of RM120.00 per hectare a miserly sum considering the fact that oil palm planted on their land had been harvested for more than three years. Or that the landowners, particularly the government certified Tuai Rumah, led the Penghulu continue to bury their heads in the sand and remain impervious to the truth, steadfastly clinging to their delusion that oil palm plantation would be manna from heaven even though many acres of their native customary rights land had been planted with rubber trees which they had gainfully tapped for latex before they were cleared without compensation to make way for the oil palm plantation,” he said.

The 4th defendant’s plea (State government) that the plaintiffs’ claims to native customary rights were not in accordance with Section 5 (2) of the Land Code or in accordance with any law applicable to the creation of such rights was a non-starter because it was the defendants’ case that the oil palm plantation was created over 7,000 hectares under the Sungai Tenggang NCR Development and the plan tiffs’ claims were confined to land within that area.

The Principal Deed of which the 4th defendant was a party also stated that to be so. The 4th defendant’s contention that all the natives in the area had consented to the development of the native customary rights land flies in the face of the incontrovertible evidence adduced by the plaintiffs to the effect that they had not agreed to the destruction of their native customary rights land by TETANGGA.

Finally apart from the fact that it was not pleaded, the 4th defendant’s reliance on the Land Code and Development Authority (SG. Tenggang NCR Development Area) Order 2006 issued under the LCDA Ordinance was ill-founded because the Principal Deed and the joint venture agreement had been established to be invalid from their inception and cannot, therefore, be validated by the subsequent act.

“This is but one example of the overzealousness of the state functionaries which led to the total disregard for the legal aspects of implementation of oil palm plantation.

“The various justifications relied on by the defendants for the initial implementation of the development of the NCR land have been demolished and the whole substratum upon which they depend for their continued role in the oil palm plantation does not exist by reason of illegality.

“There is no legal basis for LCDA, Pelita Holding and TETANGGA to remain on the native customary rights land which hs been acquired by the plaintiffs from which they must inevitably leave,” he said.

In the circumstances and for the reasons aforesaid the Court declared and ordered the plaintiffs are entitled to their claim to land under native customary rights in the Sg. Tenggang NCR Development area at Pantu.

It also declared the destruction of the plaintiffs’ respective native customary rights land by the first (LCDA) second (Pelita Holding Sdn Bhd) and third (Tetangga Arkab Pelita) defendants was unlawful and damages to be assessed by the Deputy Registrar to be paid by the first, second and third defendants with interest at 4% per annum from the date hereof until settlement.

It ordered that the first, second and third defendants forthwith give vacant possession of the plaintiffs’ native customary rights land.

Fourthly, the first, second and third defendants and their servants, agents, assignees and successors are restrained from entering, occupying, clearing, harvesting or in any way howsoever carrying out works in rhea plantiffs’ native customary rights land; and costs to the plantiffs to be paid by the first, second and third defendants to be taxed unless agreed.

The plaintiffs were represented by Dominique Ng and assisted by Datuk Seri Daniel Tajem.

NCR Land owners’ biggest dilemma?

PANTU - Tuai Rumah (longhouse headman) Masa and 700 NCR land owners of Kampung Tekuyong, Empaling, Gayau, Isu, Abok and Kerangas have called on Land Development Minister James Masing and chairman of NCR land task force Alfred Jabu Anak Numpang to stop Tetangga Akrab Pelita Pantu selling their NCR land within the company’s plantation.

Tuai Rumah Masa has also lodged a Police report against the sale of their native customary rights land within the plantation belonging to Tetangga Akrab Pelita Pantu at the Pantu Police station on 2 December.

It was reported in the New Straits Times that a plantation group Kim Loong Resources Berhad plans to buy a 60 percent stake in Sarawak’s Tetangga Akrab Pelita (Pantu) to increase its land bank for oil palm plantation.

Some 2.02 million shares of RM1 each in Tetangga Akrab Pelita are being sought, while the remaining of 40 percent owned by Pelita (10 percent) and the rest by NCR land owners through a joint venture scheme.

The agreement is expected to be signed next month.

“Our NCR land is not for sale as it is on which we the natives will survive and work on for our livelihood,” said Tuai Rumah Masa angrily.

“Please help us to stop the sale,” he said, asking Masing, Jabu, William Mawan (Minister of Urbanisation and Social Development) and other Dayak elected representatives to help stop the sale.

“Without your help, we will lose our land to another peninsular company,” he stressed.

It is learnt that as of 31 October 2009, Kim Loong has made advanced payments totaling RM11.43 million for the acquisition of the Tetangga Akrab Pelita plantation.

It is also reported that for the past three years the company had been losing some RM3.151 million due to immature plantations.

The company which has planted about 6,283 ha of land, the bulk of which is native customary rights land, has been given licence to plant oil palm in some 10,471 ha of land held under NCR land in Sungai Tenggang and Bukit Begunan.

Jetty’s comment: Tetangga Akrab cannot sell NCR land. Firstly, the lands are still under dispute and they have filed a legal action against Tetangga Akrab in 2006 for planting oil palm in their land without their permission. The case is pending.

Secondly, any NCR land cannot be sold to non-natives. There is a law in the Land Code preventing the sale to non-natives. (I am not sure of the Section, but I know there is a law. Any non-native who buys NCR land will stand to lose as the purchase will not be approved or recognised by the Lands and Surveys Department. Usually non-natives used the names of natives to purchase NCR land.)

But Taib’s government is smart. First he declares that NCR land is a State land. After that the land is leased to their cronies to develop. These cronies, in the case of Tetangga Akrab will sell it to another company in order make fast money.

Anyway, once the NCR land has been declared State land, it is incumbent on a landowner to prove that the said land is NCR land. His Aki (grandfather), the creator of the rights, has long gone. He cannot defend on any Tuai Rumah and other community leaders to help him provide proof of ownership as they have been warned by Awang Tengah (aka as Awang Tanah), the most powerful second minister of planning and resource management not to endorse any claim of NCR land. Otherwise, they will lose their allowance of RM450.00 a month.

Isn’t this the biggest dilemma faced by NCR land owners nowadays? - The Broken Shield

Source: www.thebrokenshield.blogspot.com

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