Sahabat Alam Malaysia - Sarawak - A brief on the Bakun Dam

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Extinguishing native land rights

FROM the very beginning, the Sarawak State Government's ventures into any land-involving projects have been met with a mixture of cool responses and, at times, indignant resistance from the Sarawak pribumi (indigenuous people). There is a simple reason for this. It is because they know that their customary land rights will be infringed upon.

Under the Sarawak Land Code, Native Customary Land (NCL) can be categorised as,
1. land in which native customary rights (NCR) whether communal or otherwise have lawfully been created prior to 1st January 1958.
2. any area of State land that has been declared Native Communal Reserve land by the Chief Minister; and
3. Interior Area Land upon which NCR have been lawfully created by obtaining a permit.

NCR over these plots of land are sometimes owned by individuals, by tribal groups, or by a longhouse consisting of several families. Ownership is known but not necessarily recorded.

In effect as of 1958, when the Sarawak Land Code came into force, NCL became a part of State land, and NCL could be disposed of. As of then, the pribumi lost lawful ownership of their land.

It must stated here that most of the NCL in Sarawak falls under the first category, whereby the pribumi have occupied the land for generations, and thus have NCR created before 1958.

According to Section 5(3) of the Land Code, "any native customary rights may be extinguished by direction issued by the Minister" for "public purposes" or to facilitate alienation of land, which under Section 15A must be for the purpose of development or of any undertaking that would, in the opinion of the Minister, be for the benefit of the State or the public.

In essence, the Minister obtained the authority to dispose of NCL for reasons that he deemed necessary by ordering extinguishment of the pribumi's NCR over the land. Note the apparent subjectivity of this authority.

The Land Code requires that the order to extinguish NCR must be accompanied by the payment of compensation to any person who can establish NCR on the land. Hence, any order for extinguishment would be published or notified in the government Gazette, or be exhibited at the notice of the District Office for the area.

However, any claims for compensation following the extinguishment of the NCR over these lands must made within 60 days of the notice, after which "native customary rights shall cease and be extinguished and the land held under such rights shall revert to the Government".

Obviously, 60 days is not enough for pribumi who live in the interiors and who have limited access to legal assistance. Previously, before it was amended in 1996, the Land Code demanded that direction of extinguishment be brought to the notice of the pribumi. This is not required any more. This means, that should the pribumi not have access to the District Office during the sixty-day period, they may lose their land without even knowing it.

Clearly, the Land Code as it is now has made it so much easier for the State Government to take over NCL from the pribumi who have occupied and served the land for generations.

To make matters worse for the pribumi, while they are aware of the boundaries, which delineate the NCL for each community, more often than not, they do not know the exact acreage of the land surrounding their longhouses. The exact measurement of the land has never been necessary, because according to the tradition, each and everyone in the longhouse is entitled to work on the land. However, in the case of NCR extinguishment, exact acreage has to be obtained to ensure that proper compensation is given out. This means that the pribumi have to get their land surveyed and measured, and the only way they can do this is by seeking the help of the Land & Survey Department.

They are cornered. Because the same authority that wants to get them off the land would survey their land.

And the burden of proving NCR over the land lies on the pribumi who have put in claims for compensation. In fact, if the State Government has leased out the land to a private company, the lease would continue even if there are NCR claims made by the pribumi. And until the pribumi can prove their NCR over the land, the company would be able to enter on and use the land that they have lived on for generations.

Because of the nature of compensation claims, land that belonged to a community and was considered communal could now become private, because each pribumi would begin to put it in claims for individual ownership of the land. Unequal opportunity among pribumi individuals, caused by illiteracy and other factors, to make such claims would result in some of them ending up being completely landless.

The resulting conflicts that would arise because of this could break up the community.

The Sarawak State Government set up the Land Custody and Development Authority (LCDA) in 1981 to sort out the inevitable legal entanglements and snitches once they began working on the pribumi's customary land.

The LCDA was given a very wide mandate and can undertake the development of all categories of land for agriculture, commercial, industrial and residential purposes irrespective of location, once the location of the land is declared a Development Area. It has the power to undertake the compulsory acquisition of any land in the state, with the Minister's approval of course.

It also functions as a land bank, identifying rural land and making it available for development. The LCDA would be the matchmaker between the owners of the land and investors who are interested in developing it. It will then coordinate and supervise the joint venture.

For all intents and purposes, the LCDA would handle any problems with compensation and as such that the pribumi would bring up in relation to the extinguishment of their NCR, make sure the pribumi eventually leave the land, choose a new location for their resettlement, and manage the development of their resettlement area.

Once the land has been developed, LCDA has the authority to dispose the land in any manner it so desires. It can sell the land for a profit, it can sell it on behalf of the owners or it can transfer the land back to the owners after all incurred development costs have been paid up by the latter.

So, the LCDA was essentially set up to facilitate the acquisition of NCL from the pribumi. Over the years, however, more and more of the pribumi have become aware of the whole process that follows the extinguishment order and are increasingly able to contest and claim compensation for their NCL.

In response, the LCDA and their private ventures have taken to bypassing the whole process. Recent reports show that both have been encroaching on NCL in, what appears to be, defiance of the proper procedures.

This has brought about a more evident resistance from the pribumi in the forms of blockades and physical fights with the contractors sent in by the private companies. This spirit of resistance has remained true over the years and has withstood police arrests and being jailed.

Pushing them off their land and placing them in social situations alien to their traditions and culture is tantamount to pushing them off their rightful place as the original people of Sarawak.