Monday, April 22

Towards a solution to a festering problem? – Native land ownership misunderstood


THE colonial definition of land in Sarawak is different from the present government’s understanding of the colonial government’s definition. This is the main source of quarrels between the government/leaseholders and the Natives holding Native Title amounting to proprietorship.

Finding a solution to this problem has been the main problem itself. For the past 71 years, it has been festering like a sore without proper treatment. Effort to find a solution has met with obstacle from the vested interests, as Peter Mooney said about his problem with the draft of the Land Code 1958.

To the colonial government, “all land belongs to the Crown EXCEPT land which has already been alienated OR land claimed under customary rights” (pemakai menoa and pulau galau, my addition). Size of pemakai menoa, ‘One and a half day’s journey’ – AJN Richards’ ‘An Iban-English Dictionary’ – Clarendon Press, 1981.

In the midst of the debate, the Federal Court’s decision in the case of TR Sandah two years ago, declaring the Iban custom creating rights to land called pemakai menoa and pulau galau in particular localities under dispute as having no force of law in Sarawak, has caused much mental agony and considerable anxiety among the Native owners of customary land who lost their case, in particular, and among the members of the indigenous communities, in general.

By that decision, we are one step backward when we should have gone one step forward following cases like Mabo 2 (Australian), Calder (Canada), Nor Nyawai, and Madeli Salleh (Malaysia) – recognition by the common law of the Native customary law.

Was it politically wise for the government of the day to insist on appealing against the Court of Appeal’s decision in Sandah?

Without the appeal to the apex court the law on PMPG would have been properly settled – in tune with the rule in Nyawai Case. Also, if due weight had been given to the minority decision of Justice Zainun Ali in Sandah, a lot of current bad blood between the government/leaseholders and the Native landowners would have been avoided.

Do you recall the debate over this very point between the anthropologist and the Director of Land and Survey Department – the common law is inadequate for the purpose of the Natives of Sarawak?

Fiduciary duty

The social scientists of the colonial era were concerned about the government’s fiduciary duty owed to the landowners when erosion to the landownership rights to traditional lands was beginning to be progressively regular.

The children and the grandchildren of the original owners are now fully aware of the consequences of loss of rights to the traditional lands. Many of them may be sulking quietly but as the grievances stacked up, some of them have resorted to public protests to make a political statement, canvassing for support, not for pity, but for an understanding from fellow Malaysians of their future prospects and survival in a larger Malaysian community. They are asking “Is the law made for the man or the man for the law?”

Is it not also the concern of other members of the larger Malaysian community that a big minority in Sarawak are not happy, being dispossessed of their land rights? In the recesses of your heart, answer it, please.

Native land rights not their main concern

On Saturday July 28, 2018, I attended a forum organised in Kuching by the Civil Society Organisation. We talked about what Malaysia should do in terms of contributing towards the sustainability in many aspects of life – an agenda of the United Nations until 2050. Of the 17 items of concerns ranging from poverty to preservation of wild orchids, NOT one was specifically about Natives losing rights over their traditional lands and resources.

Amazing how overly little the Malaysian do-gooders care about the rights of the indigenous peoples in Malaysia!

It is incumbent upon the government owing the fiduciary duty to the Natives of Sarawak to assure them that their traditional lands will not be eroded any further within the next 71 years?

The second Rajah Charles Brooke in the Council Negri in 1915 had warned the people of the country not to let strangers deprive them of their land who might appear after his time, “with soft and smiling countenances to deprive them of what solemnly and truly he considered to be their right, and that is to the land …”

Who cares about what the Rajah said. He is dead and buried. Who else does care? Suhakam.

Its report

I attended a meeting called by the local office of the Commission on Nov 30, 2017. Suhakam reported that 17 recommendations had been made by a taskforce-styled the National Inquiry into the Land Rights of Indigenous Peoples of Malaysia – address security of tenure; clarity of concepts on customary tenure; restitution for non-recognition of customary lands; redress mechanisms; address past and present programmes; review compensation; adopt human rights -based approach (HRBA) to development and free prior informed (FPIC) law; ensure land development does not adversely impact indigenous peoples; promote successful development models; policy towards people centred inclusive sustainable development; settlement exercise on indigenous customary lands; recognition of indigenous lands in protected areas; encourage active involvement of IPs in forest management; conduct comprehensive review of Jakoa; capacity enhancement of land departments; review responses to land issues; and, Immediate implementation of corrective measures …”

Has any one of these recommendations been acted on by the relevant authorities, state or federal? A deafening silence! I think the general public may like to know what has been done about any of those recommendations in so as Sarawak is concerned since the last meeting.

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