Extracted from Malaysiakini

Independent body needed to look into native land matters
Tony Thien
Mar 31, 05 12:41pm

A seminar on Sarawak native land rights has called for an independent body to study and find ways to resolve issues affecting the rights of Malaysia's indigenous communities, particularly over land matters.

It also called on the state government to amend existing laws where necessary in order to avoid a conflict, if any, of such laws with native customary laws.

These were among the key decisions reached at the end of a two-day seminar organised by the Human Rights Commission of Malaysia (Suhakam) in Kuching early this week.

The seminar was to promote interaction between the relevant state agencies, non-governmental organisations (NGOs) and community leaders from the rural communities throughout Sarawak.

Suhakam commissioner Prof Hamdan Adnan said the NGO representatives also reiterated the need for a ground survey of all native customary rights (NCR) lands - 22 percent of the state's land mass or about 1.5 million hectares - and to issue titles to the rightful claimants.

In the meantime, they requested the authorities to withhold approval for any new provisional land licences to companies in areas where there might exist native customary rights on land until a survey has been carried out to determine the status of the land.

Malaysiakini learned that the state government has within the last two decades issued more than 100 provisional leases to companies, both local and from Peninsular Malaysia, either for reforestation projects or for oil palm plantations and other projects throughout Sarawak.

Natives must be aware

This has led to numerous conflicts on the ground where natives are maintaining their native customary rights over untitled land such as pulau (reserve), pemakai menoa (communal land) and temuda (cultivated secondary forests).

Native land-owners have brought to court more than 100 cases against companies, mostly oil palm plantation, over the issue of native customary rights throughout Sarawak.

The NGO representatives also wanted companies with on-going operations to stop their activities on the land until the causes of the conflict have been resolved.

According to Hamdan, the native participants also wanted the 60-day notice which is required for natives to file claims prior to the extinguishment of native customary rights on state land to be replaced instead by an indefinite period of time “in order to ensure every native is aware of what's going on and to make claims or oppose such a move.'

This was because many NCR landowners could not read or write and that the notice as required to be published in local newspapers and posted in the district office was of no use as it was hardly sighted by those affected by it.

Instead, they said the notice should be sent to every affected longhouse and kampung and that the government must hold dialogues with the local community whose final decision must be respected with regard to any land development project.

Hamdan said the participants also felt very strongly that there should be an equitable compensation for the acquisition of NCR land to be based on fair market value instead of merely basing on planted fruit trees.

Suhakam deputy chairperson Simon Sipuan and another Suhakam commissioner N Siva Subramaniam also attended the seminar.

Representatives from the state Attorney-General Chambers, the Land and Survey Department and the Sarawak Forestry Corporation made their presentations on native land rights from the legal perspective.

The panel of speakers representing various NGOs also presented their arguments and viewpoints, supported by case studies and findings, on native customary rights land.

Sabah model

Speaking at the seminar, Universiti Malaysia Sarawak (Unimas) Social Sciences Faculty deputy dean Dr Andrew Aeria said the current practice of granting provisional leases should be reviewed and suggested that the model used in Sabah under its land ordinance be adopted for issuing titles to natives.

Under the Sabah land ordinance, a native can apply for a native title to untitled state land and the district officer to whom such application is made can issue the title after calling all claims.

The native title is issued in perpetuity, and the native can lease the land for a period of 60 years to non-natives for residential or commercial use, if he so wishes.

Sipaun told malaysiakini that the title is normally granted for an area not exceeding 15 acres for agricultural use. The lands normally applied for are in the interior or swamp lands along the coast.

In his presentation, Aeria made his observations and interpretations largely on the basis of the decision of the then Sarawak High Court judge Ian Chin in the landmark case of 2001 in Miri in which he (the judge) found that certain longhouses within a provisional lease area had native customary rights over pulau and pemakai menoa and he determined that they were NCR land.

The judge ordered the authorities to rectify the situation by issuing a new lease to the two related tree plantation companies to exclude the 672-hecatre NCR land.

In view of the implications of the ruling, the authorities are appealing against the decision of the Miri High Court.