Whose land is this anyway?

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The Sarawak perimeter survey conducted by the Land and Survey Department shows how much officials are – truly or deliberately – in the dark over the customary land rights of native Sarawakians.

It seemed like a good idea, thought Michael, the Tuai Rumah of Ulu Entabai in Kanowit. His ancestral land, handed down through the generations from his forefathers who roamed and hunted in these jungles, would be surveyed and declared as the native customary land of his people. The boundaries would be clearly marked, he was told, and this would prevent encroachments by developers.

Officers from the Sarawak Land and Survey Department came and did their work. To Michael’s horror, the burial ground where the bones of his ancestors were interred was not included in the survey. Neither was the virgin forest where his people hunted wild boar and gathered rattan and wood to make baskets and build their homes. Michael and his fellow villagers were then told that their native customary land only covered the areas they had cleared for their longhouse and for farming. The rest of it belonged to the state.

Michael’s land was demarcated under the perimeter survey exercise, an RM60mil joint state and federal government project launched in 2010. It was hailed as the Native Customary Rights (NCR) New Initiative1 and touted as a solution to boundary disputes between natives and developers, and as a way to ensure the security of native land ownership.

However, the survey has become contentious for the simple reason that natives and the government have different views on what constitutes native customary land.

Important differences

In addition to cleared areas for settlements, farms and gardens, natives also consider “untouched” forests as part of their customary land. A longhouse, which typically represents the entity of one community, determines its surrounding territorial domain by custom. Land boundaries set by forefathers are still observed today. These boundaries are marked by natural features such as mountain ridges or rivers. The rights to this area and its resources are passed on at birth.

The Iban call this territorial domain pemakai menua. Within it are burial grounds and other cleared and cultivated land called temuda. Within pemakai menua is also virgin jungle, called pulau galau, left in its primary state for functional reasons – to serve as water catchments and as a source for food and for the harvesting of forest produce.

The Sarawak government, however, only recognises temuda as native customary land. The Sarawak Land Code specifies NCR land as cleared, occupied, planted or cultivated areas.

The state’s leading NCR lawyer, Baru Bian, has challenged this definition in numerous land rights cases, and won. By the time the perimeter survey was introduced in July 2010, there were already some 200 NCR cases in the Sarawak courts concerning illegal encroachments by state and private enterprises.

One of Baru’s cases, Nor anak Nyawai & Others vs. Borneo Pulp Plantation Sdn Bhd & Others (2001), became a landmark case when the High Court ruled that pemakai menua and pulau galau are indeed native customary land. The Court of Appeal upheld this definition and, since then, the courts have consistently taken this position in subsequent cases. However, the judgements are academic until and unless the state amends its land laws and instructs government agencies to give effect to the rulings. As recently as November last year, Sarawak’s Special Functions Minister, Adenan Satem, reiterated to the legislative assembly that the perimeter survey would only take into account temuda land2.

Legal intricacies

At first, the perimeter survey seemed to have achieved its stated aim. The National Human Rights Commission (Suhakam) even noted in August 2011, a year after the survey commenced, that the exercise had reduced complaints concerning NCR claims over land3. In June 2013, the federal government gave it an additional RM30mil under the 2014 national budget.

In November 2013, the legislative assembly was informed that 257 areas covering nearly 350,000ha had been surveyed, and of this, 187 areas comprising 240,000ha had been gazetted as Native Communal Reserves.

According to the website of the Sarawak Land and Survey Department, NCR lands delineated under the perimeter survey are declared Native Communal Reserves4. Natives are assured that reserve status “provides security of ownership for the landowners”. Once declared a Native Communal Reserve, the land will be surveyed again, this time to determine separate boundaries or parcels for the individual landowners. The website states that this culminates in the issuance of individual land titles.

But NCR lawyers aren’t taking the bait. Both Baru and another NCR lawyer, Ali Biju, do not think that Native Communal Reserve status will enhance the value of customary land. Despite the promising label, Section 6(3) of the Land Code defines Native Communal Reserves as “state land” and describes the native community for whose use the land is reserved as “a licensee from the government”. Further, the issuance of any document of title “shall be in the absolute discretion of the Director”.

Reflecting on this legal sleight of hand, Ali, who is also the Krian assemblyman, said in a speech to the Sarawak legislative assembly that “in plain language, Native Communal Reserve is in actual fact state land.”

A response by the Land and Survey Department to Ali’s criticism of the perimeter survey and Native Communal Reserve did not address his concerns on Section 6(3) of the Land Code5.

Implications

“Most natives are unaware of the legal intricacies and only realise that something is amiss after finding parts of their customary land excluded from the survey,” said indigenous rights activist Nicholas Mujah, secretary-general of the Sarawak Dayak Iban Association (Sadia).

NGOs like his have been spreading awareness about the implications of accepting the perimeter survey. He knows of 13 police reports that have been lodged by natives against the survey findings as of January 2014. Most were lodged in Sri Aman, Kanowit and Mukah divisions, and involved the Iban, the largest of Sarawak’s tribes.

“My advice to communities who disagree with the survey but cannot undo it is to lodge a police report. This gives them a basis for future action if they want to challenge it,” said Mujah, who related the story of village chief Michael of Ulu Entabai above.

Other communities in Sri Aman, led by their tuai rumah, Still of Nanga San Undop and Isu anak Sidu of Kampung Bayai, as well as Tambi anak Geram in Muara Balingan in Mukah, have had the same experience with the survey.

To date, no lawsuits have been filed over a perimeter survey, according to Baru. The implications of the survey have also yet to be fully felt but in his view, communities which have allowed their land to be surveyed will no longer be able to claim NCR land beyond that which has been demarcated. From the indigenous point of view, it paves the way for land developers to ride roughshod over them with no recourse.

“They would be bound by the agreement and acceptance. The government has stated that that is the extent of their NCR land, and it has also been publicly stated by the Minister that the purpose of the perimeter survey is to determine the boundary between NCR and state land,” said Baru, who is also Sarawak PKR chairman.

The survey is not mandatory and communities must apply to the Land and Survey Department for it to be conducted. However, both Baru and Mujah said that in some cases, the department dealt exclusively with the village or community headman who agreed to the survey without the consent of the villagers.

“Some communities have opposed the survey because the name of the headman is the only name appearing in the registry of the department as holding the land on behalf of the community,” said Baru. Mujah believes that some village chiefs may be pressured to accept the survey because their positions are government appointments that come with an allowance.

Community mapping

Sarawak has big plans to be a leading palm oil producer and targets two million hectares of oil palm plantations by 2020. Already, about one million hectares of land has been cleared and planted as of 2012. The state is also going industrial with the Sarawak Corridor of Renewable Energy (Score) project that will use dams to power factories and smelters.

The little that natives can do to protect their ancestral lands is to conduct community mapping – surveying their NCR lands by themselves to include their pemakai menua and pulau galau – as preparation for anticipated legal action. Sadia and another NGO, Borneo Resources Institute (Brimas), have been training communities on using global positioning systems to mark the land features that denote customary boundaries. Around 500 communities in Sarawak have been surveyed in this manner, according to Mujah.

“We are using these community maps in some of the current court cases and we are also trying to lobby the government to recognise these maps as the actual NCR areas,” he said. It will be an uphill struggle, though, as long as the state government ignores the court rulings and refuses to acknowledge the natives’ definition of NCR land.



1
www.landsurvey.sarawak.gov.my/modules/ web/page.php?id=599

2 “At odds over accurate NCR definition”, The Star, November 27, 2013, www.thestar.com.my/News/ Community/2013/11/27/At-odds-over-accurate-NCR-definition-One-side-says-only-temuda-whilethe- other-insists-it-includes-p.aspx/

3 “Suhakam: Perimeter initiative has reduced NCR cases by half since last year”, The Star, August 25, 2011, www.thestar.com.my/story.aspx?file=%2f2011%2f8%2f25%2fsarawak%2f9363915&sec=sarawak

4 www.landsurvey.sarawak.gov.my/modules/web/page.php?id=599

5 www.landsurvey.sarawak.gov.my/modules/web/page.php?id=349


Deborah Loh is a freelance writer and editor.



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