Wednesday, April 14

Restoring indigenous peoples’ rights to land


MPs from Sarawak should initiate a move to legislate for Sarawak in the case of native land rights. — Bernama file photo

I USED to draw up a long list of what I would like to do and accomplish during each particular year. Only a few of them have been carried out successfully; most, however, have not been implemented, human frailty being one of the reasons.

A prayer

For next year, I have no new resolutions, only a couple of appeals for the kind consideration by the federal government of the day.

It is preceded by an ardent prayer to the Almighty to protect everybody from Covid-19. The world has had enough of the pandemic.

It has killed many innocent humans and caused untold damage to the economies of many countries.

Still, I’m sure that God is listening to and answering the prayers of peoples from various Faiths and Beliefs.

The priest in my family says that God speaks in mysterious ways.

Thank God for the medical scientists who have produced the Covid-19 vaccine; let’s hope everyone who needs it will be vaccinated without discrimination.

Lest this article sound like a sermon, let’s turn to some mundane matters of great importance on earth.

Land rights of indigenous peoples of Malaysia

For many years now, I have been involved in the quest for legal recognition of the custom governing land rights of the indigenous peoples, including those in Malaysia with special reference to the native landowners in Sarawak.

I took part in the seminars and workshops in which participants brainstormed ideas and hammered out proposals on how to protect and develop traditional lands for the economic benefit of their owners.

An appeal

This is one of the outstanding issues of the day about which I will continue to engage the authorities with in the court of public opinion. Hopefully, those of my readers who are interested in this worthy cause will help me out with practical ideas. Together we wish to appeal to the federal government to seriously consider the following matters:

* Legislating the relevant provisions of the United Nations Declaration on the Rights of the Indigenous Peoples 2007 (UNDRIP) as a federal law of Malaysia. 

In September 2007, the UN General Assembly had declared, inter alia, that – “26 – 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give LEGAL recognition AND protection to these LANDS, TERRITORIES and RESOURCES. Such recognition shall be conducted with due respect to the customs, tradition and land tenure systems of the indigenous peoples concerned. 

These lands, territories, and resources, above, include the lands, territories, and resources owned by the Indigenous Peoples (Orang Asal or the natives) of Sarawak, Sabah, and Malaya. The Iban (Sea Dayak) call this territorial domain, pemakai menoa, and pulau galau, while the other indigenous peoples call the similar land by their own respective terminology.

Within the context of the UNDRIP, they are all thus entitled to protection of the law of Malaysia, our country being a member of the United Nations. A federal law must complement the Sarawak’s land law in terms of giving the custom creating traditional lands the necessary legal force.

A rule that hurts many people

Blame the non-recognition of the indigene’s right to property on a case known as Sandah (Director of Forests, Sarawak, and State Government of Sarawak versus TR Sandah Tabau and a number of others from Ulu Machan, Kanowit). All the way from the level of High Court to that of the Court of Appeal, the judges had held that Sandah and friends had the right to their territorial domain (pemakai menoa and pulau galau). But when it came to the highest court of the country (Federal Court) 10 years later, it was instead held that the custom creating native rights over the domain, after Jan 1, 1958, has no force of law in terms of the English common law as applied in Malaysia.

Land (Amendment) Code 2018

The politicians in power in the state must have assessed the potential adverse effect of the rule in Sandah case on the indigene’s right to property. They took action in 2018. The state legislature amended the Sarawak’s Land Code, 1958. The government wanted to make the custom relating to pemakai menoa and pulau galau to have the necessary force of law. This would render ineffective the rule in Sandah in a future case. And the legal practitioners need not wait for another decision of the federal court either to uphold the majority decision or set it aside. But the law as amended has not yet been tested in the court.

In the meantime, there are cases pending disposal in court involving disputes over ownership of territorial domain. If the rule in Sandah still stands, then expect many Sandahs to be dispossessed of their territorial domain.

Power of Parliament to legislate for states

In my opinion, the State does not have exclusive powers to legislate matters relating to property (land) ownership. In certain matters, it is possible for the federal legislature to make laws if you refer to Article 76 (1 ) which states, “Parliament may make laws with respect to any matter enumerated in the state list, but only as follows, that is to say, (a) for the purpose of implementing any treaty, agreement or convention between the federation and any other country, or any decision of an international organisation of which the federation is a member;…”

It is the fact that the Federation of Malaysia is a member of that international organisation referred to in the Constitution.

Yet, doesn’t it strike you as odd that we have not been proactive to protect the property rights (ownership in land) of our own people as enshrined in Article 13 of the same Constitution?

The governing authorities can’t go wrong if they take the initiative to legislate for Sarawak for the purpose of restoring the property rights of the citizens in the state. Subject to correction, there is no provision in either the Federal or the State Constitution which prohibits the federal government to introduce a piece of legislation which has the effect of restoring the rights to property of its own people.

For the reference of those interested in this subject, please read Article 13 of the Constitution which says, (1) No person shall be deprived of property save in accordance with law. (2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.

The members of the legal fraternity and the intelligentsia know that legislating for Sarawak under Article 76 of the Federal Constitution (valid as of March 2017) is possible, and with respect to the relevant declaration of the United Nations 2007, it is desirable and indeed imperative to do so. However, the initiative to introduce any legislation for approval by Parliament normally comes from the government of the day itself.

Is it not then the responsibility of the legislators to give the authority to the courts to legally recognise the rights to land of all its people, the Orang Asal included?

These Indigenous peoples are also the citizens of this country, constituting a vital part of its population, and paying taxes. As their numbers increase, they will play an important role in the economic and cultural life of this country.

Why are they being deprived of their legal rights over property (lands, territories, and resources) which they have traditionally owned, occupied, or otherwise used or acquired? It is a violation of the human rights, is it not?

While, on the one hand, the state of Sarawak has tried its best to circumvent the ‘no force of law’ constraint by amending the Sarawak Land Code in 2018, the federal government, on the other hand, has not made a move to dismantle that constraint even though it has acceded to the UNDRIP.

There are a number of cases pending disposal in the courts. As the decision of Sandah is a precedent, expect more people besides Sandah to be unhappy if the rule is not overruled.

An appeal 

It is my fervent hope that the honourable members of parliament from Sarawak and Sabah would initiate a move to legislate for Sarawak, in line with Article 26 (3) of UNDRIP. This is the rationale for the enactment of a federal law in order to reinforce the existing state land law.

If you don’t try, how do you know that it cannot be done?

Comments can reach the writer via [email protected]