| Sarawak
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The making
of Sarawak's new land laws Example is the best definition said Sainte-Beuve. You are what you do and say. Thus when the freshly elected Sarawak State Assembly neatly pulled a stunt of siring two repressive laws pertaining to the state's Native Customary Rights in the same week early November 2001, the meaning of the swift actions is as good as the meaning of the laws. Exactly what are these new laws and what do they mean? The first one is a new land survey law, The Land Surveyors Ordinance 2001 which essentially removes the ability of native communities to prove the extent of the land on which they exercise Native Customary Rights (NCR) via an increasingly popular communal effort - community mapping. For too long now, Sarawak native communities have been battling the Sarawak State Government for allowing logging and plantation operations and dam building activities on land which the people claim that they have customary rights over. Central to this dispute is not the NCR per se but the extent of the NCR over such land. The bone of contention is such because among other reasons, Sarawak native communities have systematically developed a distinct system of land and land use categorisation that not only allots land for individual families, it also assigns parcels of forests for communal sharing (see box). Although the state has often conceded that the natives do have some customary rights on land surrounding their longhouse and on nearby cultivated areas, it has consistently disputed the natives' claims to the high forest or hutan pemakai menoa in Iban, where hunting, fishing and gathering of forest products by community members take place. Naturally, it is in the high forest areas that logging concessions and dam building activities often take place.
In May 2001, the usefulness of community maps was victoriously demonstrated when the maps were accepted as evidence in the Rumah Nor/Luang case, which was a representative action brought by two Iban communities from Bintulu against Borneo Pulp Plantation Sdn. Bhd. that had been issued titles to two parcels of land, Borneo Pulp and Paper Sdn. Bhd. which was the sublessee of the land; and also against the Bintulu Superintendent of Lands and Surveys who issued the titles. In their legal action, the people asserted that they had acquired NCR over certain parts of the land and that Borneo Pulp and Paper had trespassed and damaged the disputed areas. In his judgement, Judge Ian Chin ruled in favour of the Plaintiffs, holding that the people are entitled to exercise NCR over the disputed areas. The basis of his judgement is his in-depth and detail definition of NCR that extend not only to the longhouse areas and the cultivated land around them but also include areas in the high forest used by the people to hunt, fish and obtain forest products. The judge also stressed further that the people's rights had survived any laws created during later times and granted an injunction against the two companies and held that the titles issued to Borneo Pulp Plantation which included the disputed areas, were also declared void. He also expected that the Bintulu Superintendent of Lands and Surveys to take the necessary steps to rectify the titles so as to exclude the disputed areas from the grant. Thus it came to no surprise that grimly implanted in the Land Surveyors Ordinance 2001 are *Section 20 and **Section 23, the legal ammunition to shoot the communities where it hurts most - their initiatives to prove what is theirs is theirs through community maps.
Section 23 functions as a complementary intimidation tool that criminalises anyone who is not a licensed surveyor and attempts to make a survey plan or map. On conviction such a person will be liable to a fine not exceeding RM50,000 or to imprisonment not exceeding three years or to both for each offence. This is made possible because the ordinance also creates the Board of Land Surveyors to regulate the activities of land surveyors and states that only licensed surveyors can make most types of maps. However the catch is, mappers working with the communities cannot simply become licensed surveyors even if they possess the necessary professional degrees that are recognised by the board. This is because the law not only endows the board with the absolute power to decide who is a certified land surveyor and who is not, it also empowers the board to turn away license applicants without explanation and revoke a certified surveyor's license at any time. Who are members of this Board? None other than the people from the top of the pyramid at Sarawak's Department of Lands and Surveys with the Director of the department being the Chairperson and his or her Assistant as the Deputy Chairperson and so on. Laws and claws If the state had wanted to, it could have easily undertaken comprehensive and all-inclusive efforts to map the people's land. Judge Ian Chin in his Rumah Nor's judgement had stated that in reference to the Sarawak Land Code and the need for the registration of native land by the Land Office, the non-registration of the land in dispute, as with other ancestral land in Sarawak, was due to the fear of the power of that time that registration would result in large areas of Sarawak being claimed by the native communities. The law is certainly a fine example that defines the intention of the lawmakers. If disputes over land boundaries exist, the proper method to resolve them should be through a court of law. How can the natives, when faced with the might of huge timber and plantation corporations and the State Government encroaching onto their land, prove their case in court when they are deprived from tendering in the key evidence to their claims i.e. communally made maps, which today can be put together scientifically by employing user-friendly technologies and oral history? This legal example is nothing more than the ostrich that buries its head in the ground - if I don't want to see it then it is not there. Thus the meaning of this law is simple - a paragon of the chicken and egg dilemma made easy - I can say whether you can say what is really yours and if I say you can't say anything, well then, you can't say anything at all and with that, only I can say what is really yours. Simpler still, when someone else claims what is yours is theirs, it is the Department of Lands and Surveys, operating as the Board of Land Surveyors, that shall judge and be the juror to decide on the admissibility of your evidence and if need be, they can play prosecutor too if you insist on continuing your efforts to put together the evidence without their authorisation. For years, community activists have made dozens of maps in Sarawak showing community boundaries, using mapping teams well trained in global positioning systems (GPS) and geographic information systems (GIS) technology. The government knows only too well that most communities cannot afford to pay a licensed surveyor to map their boundaries, if in fact surveyors will be willing to risk taking on such jobs at all in the wake of this ruling. But then again, even when a licensed surveyor is willing to take on the job to map for a native community, at the end of the day, the map will still have to be approved by the Director of the Department of Lands and Surveyors before it becomes a valid document. Without any map to indicate the extent of their land, communities will be increasingly powerless to oppose the claims of logging, oil palm and other companies on their land. Clearly these provisions are a reaction to the Rumah Nor landmark victory and are an attempt to defeat the right of the indigenous people to prove their native land boundaries since recent cases show that the Sarawak courts are willing to legally recognise maps made by communities. This law is truly without precedent, both in Malaysia and around the world. Peninsular Malaysia for instance has a Board of Land Surveyors, but there are no provisions there to restrict community mapping. This new law, in spirit, only seeks to claw the rights of the native communities to the land that they had inherited from their ancestors who had been around the area from a point of time that vested interests with selective amnesia pretend that they are incapable of remembering. Sand in the
cooking pot Central to the maintenance of traditional native titles of an indigenous group to their land is the people's practice of substantially maintaining their traditional connection with the land by acknowledging their customary laws and observing the customs of the group on the land. This means that resources on native land need to be continuously utilised by the people in accordance with their adat (customs) and the land must never be abandoned - the people must be in continuous and unbroken occupation and/or enjoyment of the rights of the land from time immemorial. Thus to legally say that the people now need permission from the state to utilise resources on the land has far reaching implications. A Malay proverb may capture the spirit of this law - dumping sand into one's cooking pot. Enemy of the
state It is embarrassing to even speculate on who will benefit most from such laws. Perhaps the best question to ask now is one that is the straightest to the point - how much is enough? Wealth will inevitably turn indecent when it knows no limit. Our fear that the laws are part of an effort to deny the native communities the full extent of their rights is certainly tied to our concerns on past allegations on the lack of transparency and accountability in the awarding of timber concessions to logging companies and on the links between the political and the commercial in Sarawak, some shamelessly made by squabbling timber multimillionaires themselves in the 1980s. Let us not kid ourselves, a large number of natives who remain in the rumah panjang are not poor by tradition nor because of their traditions, they are poor because there are the select few who have made money living off their properties. Wealth is made out of selling at bloated prices what is obtained at discounted prices. Indecent wealth is oppressive and coercive for it impoverishes others to enrich itself. One can only be poor when one is dispossessed and deprived of a reasonable set of rights to maintain a decent life. Poverty is surely a convenient tool for wealth to assert and reassert itself. Often people are not just born poor, they are made poor to maintain someone else's wealth. The two laws in question simply manifest the refusal of the state to democratise access to natural resources for the common people. Equally important, they can also further consolidate access to the ownership of the means of production to the select few. There is no use going around announcing to the world that no one in particular will benefit from these laws by claiming that they are merely regulations. These are not natural regulations because they do not protect and defend the interests of the people. When laws do not protect the common people, it is easy to guess who it prefers to protect. What will happen to a people who lose the right to livelihood on their ancestral estates or the ancestral estates themselves? Simple - imagine if all privileged urban dandies are denied the choice to a fulfilling work. This is what in essence the laws are about. Both ordinances will also make it easier for the state to paint a picture that farming, fishing, gathering and hunting are not vocation proper as opposed to clear felling forests or replacing them with trees that grow yen and dollars or building dams that are redundant energy sources. Ironically, the state also gets to choose who gets to do vocation proper. What will become of the people? Time need not tell as it has repetitively told us - from Batang Ai to the Bakun Resettlement Scheme to the plight of the Penan in Baram, yes indeed it has revealed to us so much. Examples and examples abound, and with each example, the same prioritisation of interests is defined. Perhaps, making a misery out of people's lives is also a vocation proper. How does that
define you? So what can we make out of this? That the state actually fears its own people? Certainly, such prohibitions are not apolitical. Like the chicken that crosses the road to get to the other side, the two laws have clearly crossed the boundaries of decency to make it easier for some chickens to have access to what is beyond those boundaries. Better still, when boundaries remain unclear, it is easier to re-demarcate and trespass. With laws like these, some chickens can really fly. Taking into account this two exemplary legislation, can the state then please stand up and define itself? *Section 20
-- Approval of cadastral land surveys **Section 23
- Illegal practice Cadastral land survey means any survey undertaken to mark, identify or determine the extent or boundary or the measurement, of any parcel or area of land, and includes title survey. Native Customary
Rights 101 The rights are essentially a form of native title - which reflects the community's entitlement to use and benefit from their ancestral land in accordance with their laws or customs to their traditional land and are different from normal incidents of common law title to land because native land cannot be sold, rented out, leased out or mortgaged as no individual land titles are granted. In Sarawak, the boundaries of native land of each longhouse community are reckoned by references to mountains, ridges and rivers or other permanent features of the earth. The nature of native titles must be ascertained by reference to the traditional laws and customs of the indigenous community inhabiting the land - in the case of Sarawak this should include the community's system of categorising different types of land based on the different activities assigned to each of them - which may be termed slightly differently by different ethnic groups. For the Ibans for instance, pemakai menoa refers to a territorial domain of a longhouse community where customary rights to land resource were created by pioneering ancestors. It is within this territory that you will have the tanah payung or the immediate gardens surrounding the longhouse, temuda or land for cultivation and plots in fallow, pulau galau or galau which is communal land reserved for hunting, fishing and gathering activities. Whenever one can find a longhouse in a remote area, that is in an area with forests and rivers that can provide resources like water, fish, game and plants, it is only logical to believe that activities connected to temuda, pulau and pemakai menoa have been carried out - since such resources are an undeniable source of livelihood to the people of the longhouse. Thus if the
present generation of a longhouse community can prove that they
are practising what historians described as having been practised
for hundreds of years ago within the boundaries of a parcel of land,
we must indeed accept the continued existence of their rights over
the said land. |
In
November 2001, the Sarawak State Government enforced two new laws
that tighten their claws on Native Customary Rights exercised by
Sarawak's native communities on their ancestral land. The first
has the effect of transferring the power of the judiciary to the
executive and the second downright threatens the right of the people
to utilise their native land. Read on and find out yourself how
unbelievably repressive the legislation is and decide whose interests
it is likely to protect.
Hanging
onto a precarious thread in a sticky larger legal web that often
renders corporations more equal than communities, numerous communities
of late with the assistance of several non-governmental organisations
have chosen to systematically map the boundaries of their ancestral
land by using methods made possible by the latest advances in satellite
technology and combining them with traditional memory in the form
of oral history. The result of this endeavour is community maps,
a tool that can accurately determine the extent and boundaries of
their inheritance, which in turn could efficiently proclaim that
the best things in life are not for sale, a tool that becomes especially
useful in a court of law. 
Section
20 of the Ordinance bars any party from accepting any cadastral
land surveys or survey plans, including community maps, unless they
have been approved by the Director of the Department of Lands and
Surveys. This simply implies that even the courts are not allowed
to make a decision over the admissibility of mapping or survey evidence
conducted by community efforts as done in the Rumah Nor case and
other cases. In effect, the section usurps the functions of the
judiciary and transfers it to the aforementioned Director since
the Director will be the sole authority who can determine which
maps are legally valid, even for use in courts as evidence. |