Indefeasibility of native title revisited

The freedom to express unhappiness in public, if the police allow that freedom.

THE races who are recognised as indigenous to Sarawak and defined as ‘Native’ in the Constitution of Malaysia must not think that they are the only peoples who have lost rights to their lands to government-approved developers. Exploitation of natural resources on land claimed by indigenous communities by virtue of their respective customs has been happening all over the world.

Since the beginning of colonisation in the 18th century, indigenous peoples in Australia, New Zealand, Canada and the USA have been dispossessed by new settlers, pastoralists and miners in each country.

In the case of Australia, the legal fiction Terra Nullius (no man’s land) had been used by the States and Territories since 1780s to justify the occupation of the traditional lands of the Aborigines. For more than 100 years, this system was the main instrument with which to legally deal in land of the locals, until one fine day the legality of that terrible fiction was challenged in the High Court of Australia by one Aboriginal man by the name of Eddie Mabo with the help of a team of Sydney lawyers.

On June 3, 1992, the High Court (Mabo 2 v State of Queensland) agreed with him that the Aborigines who had first settled in Australia had indeed created native title to the land before the arrival of the colonisers. Sadly, Mabo died before he could celebrate his victory. But his spirit has since haunted the law courts including those in Malaysia.

Land rights of Natives of Sarawak

Pemakai menoa

A senior Sarawak government official, Anthony Richards, defined menoa as “area of land held by distinct community esp longhouse (Rumah), incl house, farms, gardens, fruit groves, cemetery, water, and all forest within half a day’s journey” (AJNRichards, ‘An Iban-English Dictionary’ – Clarendon Press, Oxford 1981).

When Englishman James Brooke landed for the first time in Kuching in August, 1839, the northern part of the Borneo was under the suzerainty of the Sultanate of Brunei.

“Throughout the vast Malay Archipelago, there had been in existence for thousands of years a system of land tenure called by its generic name, the Indonesian ‘Adat’” (AF Porter, ‘Land Administration in Sarawak’, Sarawak Government, Kuching 1967).

Reading the book, one gets the impression that James Brooke, who had become the ruler of Sarawak by 1841, recognised native land rights. He criticised the Dutch in Java with regards to their kind of colonisation. In ‘The Private Letters of Sir James Brooke’ published in 1853, he had this to say, “For these and many other causes which readily occur it would seem, that territorial possession, is the best, if not the only means, by which to acquire a direct and powerful influence in the Archipelago, but any government instituted for the purpose must be directed to the advancement of the native interests and the development of native resources, rather than by a flood of European colonisation, to aim at possession only, without reference to the indefeasible rights to the Aborigines.”

Indefeasible rights!

I wish James was still alive and in power so that he could be called to testify in court as an expert witness on native adat regarding land rights.

One hundred years later, the Colonial Office in London commissioned anthropologist, Dr William Geddes, to study land tenure in Sarawak. Geddes reported, “Rights to land are established by the person who clears it of primary jungle, and from him they pass to all his descendants, male or female” (W Geddes, ‘The Land Dayaks of Sarawak’, HMSO, London 1954).

When James Brooke became the ruler of Sarawak, his focus was not on land problems – there were no plantation companies, so no land problems. Other than some grants of land in town, the only farm land he gave away was at Quop, to his stout supporter Baroness Burdett-Coutts.

However, according to Porter again, James Brooke had taken a close interest in Dayak customs early in his association with Sarawak and recorded many personal impressions of customs in his journal. He wrote, “The fruit trees about the Kampong, and as far as the jungle round are private property; and all other trees which are in any way useful, such as bamboo, various kinds for making barkcloth, 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, for the first time, there appeared a piece of land legislation in Sarawak. Only “unoccupied and waste lands, the property of the government” could be alienated to non-natives of Sarawak.

In the present context, you would think that only the land that belongs to the government, can be alienated, not the pemakai menoa/pulau galau; you say that these sources of food and household materials belong to the native landowners by virtue of their custom and which the Federal Constitution, the supreme law of the country, recognises. Think again.

The ‘Handbook of Sarawak’ printed for the Government of Sarawak by Malaya Publishing House, Singapore, in 1949, contains historical, statistical and general information concerning the colony obtained from official and other reliable records was compiled by one senior government official, BA St Hepburn. On page 68, there’s a passage that reads, “All land in the colony is Crown land except where portions are alienated under the Land Ordinance or are claimed by Customary Native tenure.”

Pausing here and looking at the above, is it correct for anyone to claim that all land in the state belongs to the government without any exception? Read Section 12 of the Land Code and cry.

However, academically, note that there are two ‘provisos or exceptions’ in this statement. These are relevant to the current disputes between the companies which have been issued with 60-year leases and Native landowners who think they own the land, who think that the customs which created rights over land have the force of law, who think that these rights have been recognised by the judges in many cases except in three recent cases. But precisely this is one of the contentious issues of the day.

Failure to read this statement within the context of history has probably caused a lot of misunderstanding in terms of what belongs to Caesar and what belongs to the ordinary Romans – the ones who till the fields and raise the cattle!

The special NCR committee

I’m sure that members of the special committee set up by government to handle the problem arising out of the loss of native lands to plantation companies have revisited the feasibility of native rights over land including the feasibility of Dayaks’ pemakai menoa and pulau galau in Iban, and similar areas called by other names by other indigenous peoples of Sarawak. A least, have a relook at history for some ideas outside the box.

It is the current law that a Native of Sarawak need not continuously occupy his land over which he has created customary rights to continue enjoying them. As long as he has some control over it or has the right to prevent an encroachment upon it, the land is his to enjoy. He doesn’t lose rights just by his failure to fish daily in the river or to hunt from the jungle (pulau galau) that his ancestors have reserved for timber, for house or boat construction.

But recent court decisions have the effect of destroying all his interests (economic, social and religious) in his land for ever. I hope I’m wrong in my understanding of those decisions. Just in case I am right, may I ask where can the poor Native go, now that he is technically a squatter on his own land, landless in a country that owes him a duty of care or of trust – a fiduciary duty?

The problem of NCR encroachment is multi-faceted – so many vested interests are at stake there – an elephant in the room. At this stage, we won’t mention who owns what in the existing 996 leases!

So many people have urged the government to solve the NCR problem fast. I say to those who advocate speed in solving the problem of definition of pemakai menoa/pulau galau, to be patient with the committee. Speed is not always the only answer to a problem of such magnitude. Give the committee ample time in which to hammer out details before the government acts on them.

The Iban have a saying that goes like this, “Berumban bemalam rantau jalai, jamah lubah jampat datai.” (More haste less speed). But not too long – anang baka nganti sungai nadai ulu. Come May next year, there may be some cause for celebrating the Gawai. Fingers crossed.

It took the colonial officers several years before they came up with the Land Code in 1958. Read their debate in the Sarawak Gazette (1947) to realise how difficult it was even for the non-elected colonials to produce good land legislation.

Think also of the political crisis created by the aborted Land Bills of 1965. A state government fell, partly for the poor handling of land administration in Sarawak.

Since then the Code has been amended many times – mostly against the interests of the Native landowners, such as Section 12.

The Native landowners have lost various battles without their knowing how it was at all possible. How can you lose your land without your knowledge?

Believe you me – you can!

Rallies

Rallies are not necessary if the landowners – who have been in continuous or sporadic occupation of their lands but are now dispossessed – are assured of an equitable deal by the courts of law.

And if they’re not so assured? Then public rallies or protests are the legitimate alternative channels for the exposure of manifest alleged injustice. The court of public opinion doesn’t have lofty chambers and premises – it’s held in the streets. The Peaceful Assembly law permits the holding of peaceful rallies; if the police think that there will be no trouble, they approve the venue and keep an eye on the participants. That particular rally on Nov 13 was intended to be peaceful, and it was peaceful. Why the fuss?

The recent decisions regarded by most laymen and some lawyers to have the effect of dispossessing landowners are the real target of criticism. We are actually supporting the government’s effort to find a solution to the current NCR problem, and to produce a formula for the prevention of further losses in respect of the 400 cases pending trial.

Compensation

In my opinion, the disseised landowners are entitled to express their unhappiness with the judicial decision to pay compensation for loss of their lands. The question is: will it be adequate compensation? In working out the quantum of compensation, it is only reasonable to assume that the value of land per ha – in the interior of Sarawak where these oil palm plantations are to be found – may be vastly different or much lower than that of a mixed zone land near the main road or in town or city.

For that matter, does the ‘value of the land’ include the sustenance the land would have provided for the current owner and his/her descendants for the next 10 generations?

Any monetary compensation based on the standard valuation of land may turn out to be most inadequate and therefore unfair or inequitable to the disseised landowners. And there may be thousands of unhappy claimants, don’t forget. There will be fair distribution of the amount for everyone entitled to compensation at Rumah Nyutan. And if more cases follow the decisions of the recent past, then you will have a compounding of problems on our hands. And many more Nyutans to pacify.

My take on a possible solution

The fairest thing would be to restore the rights to the lawful but disseised owners of land PLUS fair compensation for the use of their land for the duration of the ‘involuntary lease’. No extension allowed after expiry of lease.

But who is going to make this possible in the absence of similar legislation such as that was made for the benefit of the Australian Aborigines, or the Maoris in Aotearoa New Zealand, or the First Nations in Canada or the American Indians in the USA?

The committee may like to talk about similar remedy/redress for people who have lost their land, houses, animals, and other personal property. Think of the consequential problems of loss of landed property.

Comments can reach the writer via [email protected]

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