Nibbling at land rights of indigenous peoples

IN his book ‘The White Rajahs’ (Cambridge University Press 1960), Steven Runciman writes “History cannot explain the future for us, but it can help to explain the present.”

Here at a glance is the history of nibbling away the rights of the indigenous peoples over lands in Sarawak.

Lawyers and land rights activists have told me that there are a couple of hundred cases involving disputes over land ownership pending settlement in courts; more are coming.

These are mainly disputes between the native land owners or claimants to rights to land, on the one part, and the state government or superintendent of Land and Survey or Forest Department, and holders of leases issued to plantation companies, on the other.

Over the past few years, a number of such cases have been adjudicated at the lower courts level. Many are under appeal by those who are not happy with the verdict. These are at the Court of Appeal stage and then to the Federal Court for final judgment.

Appeals

No one is against the principle of the right to appeal. Pre-Malaysia, it was possible to bring cases from Sarawak right up to the Privy Council in England.

But appeals cost a lot of money and take a long time to settle. While the right of appeal is not being questioned here, nevertheless, the playing field is not even. For instance, in a case between a poor Native farmer and the State Attorney-General’s Chambers, the farmer uses his own money while the AG, being a public servant, relies on the government budget allocated to the chambers.

The government must find a solution to this issue.

Before issuing any land lease to a third party, ground survey of the customary rights over land must be carried out thoroughly and, if Native Customary Rights exist on such land it cannot be leased away from the original owner.

Native customary tenure

These are rights to property created by custom. AF Porter, in his book ‘Land Administration in Sarawak’, published by the authority of the Sarawak government, writes, “At the time of James Brooke’s arrival in Sarawak, there had for centuries been in existence in Borneo and throughout eastern archipelago a system of land tenure originating in and supported by customary law. This body of custom is known by the generic term ‘Indonesian adat’.”

Within Sarawak the term ‘adat’ is used to describe this body of customary rules or laws; the English equivalent is usually ‘native customary law’ or ‘Native Customary Rights’ but where these rights relate to land the expression ordinarily used is either ‘native customary tenure’ or ‘native customary rights over land’.

Creation of rights over land

One of the earliest groups of natives found in Sarawak (then covering the area from Tanjong Datu to Samarahan) at the time of the arrival of James Brooke were the Sea Dayaks (Iban), the Land Dayaks (Bidayuh), and the Malays. While the Dayaks have been shifting cultivators, the Malays chose their own way of life by cultivating land near their villages for rice, but fishing and trading occupied most of their time.

When the Brookes annexed other parts of the country as far as Limbang and Lawas, the natives in those places had the same customs of creating rights over land as those in ‘Sarawak’ (now Kuching and Samarahan).

In his report to the Colonial Office in London in 1954, WR Geddes writes about land ownership of the Land Dayaks of Mentu Tapuh, “The system is a simple one. It does in fact start with individual tenure, but this applies to each piece of land only for a single lifetime, after which the owners, in more than one sense, multiply … The basic principle is as follows: Rights to land are established by the person who clears it of primary jungle, and from him they pass to all descendants, male or female.”

The Dayaks, the Sarawak Malays, and the other indigenous peoples in other parts of the enlarged Sarawak have had the same method of acquiring rights over land.

When James Broke became the ruler of Sarawak, he had no law on land to introduce but he took a close interest in Native custom.

In 1840, writing in his journal ‘Borneo and Celebes’, he says, “The fruit trees about the Kampong, and as far as the jungle around, are private property, and all other trees which are in any way useful, such as bamboo, various kinds for making bark – cloth, the bitter kony … and many

others. Land, likewise, is individual property, and descends from father to son; so, likewise, is the fishing of particular rivers, and indeed most other things …”

In 1863, a Land Regulation was first introduced – the first important piece of land law – alienation of land only of “as unoccupied and waste lands, the property of government”. Brooke declared that Chinese immigrants were allowed to settle but could not govern or interfere with the Malays or Dayaks and could not take land already occupied.

Various land orders and legislation during the 100 years of Brooke rule were made. In 1899, an Order of the Rajah was made in order “to regulate the movement of Dayaks from one district to another by the expedient of limiting the power to dispose of rights in accordance with customary practice”.

In 1954, farmer Sepid and three others from Kampong Retoh and Bentawa, in the Serian District, were convicted for felling jungle and occupying land within the Interior Area Land. On appeal they won the case (Sepid Anak Selir v R (Criminal Appeal No. A/24/54, North Borneo and Brunei Supreme Court Reports, 1954 and 1955).

In his judgment, Justice Lascelles, among other things, remarked, “For the benefit of those interested in preserving old jungle of the Colony and who may feel that this judgment may lead to untold slaughter of the forest and great increase in farming disputes it is possible that Section 27 (ee) of the Local Authority Ordinance might allow a method of control. Again, the National Resources Ordinance may prove of service.”

Sensing the possibility of ‘untold slaughter of the forest’ by other Natives, the government acted fast by enacting land legislation which became the Land Code 1958, which prohibits creation of new rights over land felled by the Natives.

Although it is possible to acquire customary native rights under Section 10 of the present Code, it is very rare for the district officers to allow new jungle felling.

In 1899, an important order (Fruit Trees Order), was issued, inter alia, to regulate the movement of Dayaks from one district to another by the expedient of limiting the power to dispose of rights in accordance with customary practice. The provisions of the Order recognised certain customary practices which continue to be officially recognised.

Section 1 states, “Such fruit trees which have chiefly sprung up from seeds thrown out of and about houses, and have become common property of the inhabitants of a longhouse or village, are in no cases to be sold or in any way transferred or claimed by individuals leaving such houses or villages.”

Section 2 says that, “Any Dayak removing from a river or district may not claim, sell, or transfer any farming ground in such river or district, nor may he prevent others farming thereon, unless he holds such land under a grant.”

This was how the Rajah started restricting the Dayaks from creating more rights over land. It was in fact an ‘adat’ declared by the Rajah, not the Dayak adat at all.

The Dayaks have been shifting cultivators (pindah-randah) and as such they always went back to where they started. After 20 years of fallow, the young trees look as if they had never been felled.

The Iban term for jungle at this stage is ‘kampong pengerang’. Photos taken from the air in 1950s show trees are dark green. Town bred foresters often mistake this for virgin jungle, and, as such must be state land, which in fact it is not.

The erosion of Native rights to own land continues to this day. With the issuance of leases to plantation companies without prior and proper survey on the ground come all sorts of problems – disputes over ownership of land.

The sooner the government looks at the representations of the NGOs on the Native rights to land called pemakai menoa and pulau galau, the better.

Comments can reach the writer via [email protected]

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