July 29, 2010
SARAWAK NCR Land Issue remains unresolved
By Joseph Tawie
It took 47 years for the government to decide to survey native customary rights (NCR) land, issue titles and return the land to the rightful owners. Prime Minister Najib Tun Razak allocated RM20 million to carry out the survey works.
Sarawak Chief Minister Abdul Taib Mahmud should have made the announcement instead of Najib as land matters come under the purview of the state. So, why did Najib make the announcement? And why did Taib refuse all this while to survey NCR land?
Najib made the decision last week after visiting Long Banga, Baram, an interior seldom visited even by Sarawak state ministers. He must have heard about the Dayaks’ grouses after he took over as prime minister last year. To learn more about their problems, he sent his Sarawakian minister Idris Jala to seek the truth. And based on Jala’s reports, Najib announced the decision.
It not only caught state government leaders by surprise, it also embarrassed them. But Najib does not seem to care; his federal government’s survival depends on solving the problem. To continue to occupy Putrajaya, he must win over the Dayak-majority parliamentary constituencies. There are 23 Dayak majority and Dayak-mixed constituencies.
The decision puts great pressure on the state government to survey the NCR land. It must show support and react immediately.Thus, the state government issued a press statement not only to concur with the prime minister’s announcement but also to say that Taib’s government has approved a new NCR land initiative.
“The initiative has been approved by the government in order to come up with a faster approach to provide security to NCR land and enhance the economic well-being of landowners,” Taib said in a statement.
“NCR land is an issue that is close to the hearts of our people. As such, this joint initiative between the state and the federal governments is to help the people create value to their idle land while at the same time addressing their concerns about the long-term security of their NCR land,” he added.
Up till that point, the state government not only ignored the cries of the Dayaks for their NCR land to be surveyed and given titles, but it also went ahead and grabbed the land and leased them to family members and crony plantation companies.
The government legitimised its actions by amending the Sarawak Land Code several times, and each time it made it very difficult for the natives to claim their customary rights over their ancestral land.
And the most devastating amendment to the Land Code was made in May 2000, especially to Section 5. Section 5 (a) (2) (i) was amended by substituting the word “acquired” wherever it appears in the subsection with the word “created”.
On the surface of it, the amendment looks innocent. But if you analyse it carefully, it is very destructive to the NCR landowners. Prior to the amendment, NCR land can be passed from one generation to the next — from father to son and his children’s children, and so on. The land that has been acquired by any other means by the family always belongs to the family and its generation.
NCR land could be acquired through the following methods:
- felling virgin jungle and occupying the cleared land;
- planting land with fruit trees; and occupying it;
- using the land for a burial ground or shrines;
- using land of any class for right of way; and/or
- using any other lawful means.
Emphasis is on the word “acquired” which was substituted with the word “created”. This can result in the termination of customary rights over such land, as only the “creator” shall have such rights over the land. And after his death, the land shall be reverted to the government if the descendents are unable to provide proof for such a claim. Such a land will be known as “state land”.
No doubt you can claim the land, provided you can prove that your great-great forefathers created the
Bruno Manser: Laki Penan
rights over the land. The onus is therefore on the claimants. And very few people can prove it. They can depend only on “tuai rumah” (longhouse headman) or penghulus to be their witnesses. But the headmen and penghulus have been warned by the government not to simply endorse such land as NCR land or else they will be in trouble – their appointment can be terminated or they can even go to jail.
Bringing the case to court will incur large sums of money. Putting a deposit as required by the court will cost RM10,000, and what about the legal fees? Even if you have the money, it will take time for the court to make a decision; assuming you win in the High Court, the state government can appeal to the Court of Appeal.
Again assuming you win, the state makes another appeal to the Federal Court. The case of Madeli Salleh gives us the best example. All in all, it takes from 10 to 20 years for the case to be settled. This is the government’s strategy – delaying tactics.
All these are a great disadvantage to the Dayaks when the NCR land is not titled. Any time the government wants their land, it is difficult for them to fight back, especially when Awang Tengah Ali Hassan, Sarawak’s second minister of resource planning and management, announced the government’s policy on land on June 16, 2005. He said “all lands not surveyed or any land not issued a land title, including lands under NCR, are government lands”.
As a result of this policy, the government has acquired practically all the good lands from Limbang to Baram, Bintulu, Miri, Sibu, Kapit, Betong, and Simanggang, and from Samarahan to Kuching Divisions. And all these lands totalling1,268,888.161 hectares have been approved or earmarked for plantation estates, according to the 2005 third-quarter reports of the Land and Survey Department.
The bulk of these lands are NCR land which are to be planted with oil palm, rubber, banana and sago. The majority of all these go to Taib’s family members and cronies.
According to the “Laporan Statistik Suku Ketiga Tahun 2005 Bagi Tanah Ladang” prepared by the Land and Survey Department in Kuching, Taib’s brother-in-law Robert Ganid has been given 16,000ha in Sungai Ensengai, Samarahan Division. It was approved in May 2004. The company’s name is Lambang Sinar Mas Sdn Bhd.
Narodeen Majais, assistant minister in the Chief Minister’s department, had his application for 16,486ha approved between March 1996 and February 1998. The application was made under a number of companies such as Pelita Nirwana Muhibbah (4,555ha at Tg Midin, Serian), Gedong Plantation (3,770ha at Btg Karang, Serian), Hydroflow Sdn Bhd (2,775ha between Btg Sadong and Sungai Simunjan and Gedong) and Indranika Jaya Sdn Bhd (1,906ha at Tg Embang, Simunjan).
Syed Abu Bakar Almohdzar’s companies — Melur Gemilang Sdn Bhd and Kumpulan Kris Jati Sdn Bhd — were given a provisional lease to develop 23,744ha between Sungai Simunjan Kanan and Btg Sadong.
Deputy Minister Alfred Jabu’s family members and cronies also received a provisional lease to plant oil palm. Utahol Sdn Bhd, a company owned by Jabu’s son, Gerald Rentap, was given approval to plant 6,900ha in Ulu Medamit, Limbang.
Jabu’s nephew, Robert Lawson Chuat, had been given a provisional lease to plant 3,665ha with oil palm at Batu Api, Betong and 1581.8ha at Tg Bijat, Simanggang. His company is Durafarm Sdn Bhd.
Henry Jantun, closely associated with Jabu, has also been granted a lease to plant oil palm in 2,873ha between Btg Lupar and Btg Layar, Betong, and 2,127ha at Tg Bijat, Simnaggang, under the name of Everherald Sdn Bhd. On top of that, his company had also been given 2,000ha between Betong and Simanggang for integrated farming.
The government also approved provisional leases to big companies like Bintulu Lumber Development Sdn Bhd, Sarawak Oil Palm Bhd, Tabung Haji, Saremas, KTS, Green Ace Resources, RH Plantation, Samling Plantation, and Shin Yang Oil Palm Sdn Bhd, to name a few.
There are also government-linked companies like Pelita (Land Custody Development Authority), Sarawak Land Development Board and Sarawak Land Consolidation and Rehabilitation Authority that have been given provisional leases to develop the land for the planting of oil palm.
Almost all of these companies have problems with the natives whose NCR lands are within the areas given to them. Besides mounting blockades, the natives are also suing them and the government. For now, there are 203 cases still pending in the High Court.
Who is actually to be blamed for the blunder? Surely it is the government because it has misled the companies into believing that the lands are state lands. Naturally these companies come in and pay their land premium; then they start to clear the land off trees, shrubs and thick bushes. In the process, they also destroy the natives’ rubber trees, fruit trees, and cash crops. Certainly the natives are furious.
Lodging reports with the police are useless because the police cannot take action. These companies are armed with provisional leases and claim to have the right to fell trees or fruit trees in the stated area. Although the natives claim that the lands belong to them, they are put at a disadvantage as they have no land titles to prove that the lands are theirs.
So confrontation begins between the companies and the natives. As land is their life, the natives will not bow to any pressure. Instead, they will resort to setting up blockades because the authorities have failed to help them.
In the meantime, they seek the services of legal firms with a view to stopping (these companies from encroaching their lands) and claiming damages. When some companies from Peninsular Malaysia know that there are such things as NCR land, they abandon the project and leave. But for those who think they have the right, they stay on and find themselves in court. So far the natives have won all the 20 cases that have been settled in the High Court. Many of these companies have spent a colossal amount of money paying lawyers, court costs, and compensations.
The courts have made it clear that NCR land should include “pulau galau” (communal forest), “pemakai menua” (territorial domain), “temuda” (farming land) and “tembawai” (old sites of longhouses).
“This decision was confirmed by the Federal Court when it decided the case of Madeli bin Salleh vs the state government in 2007, which was based on the Nor Anak Nyawai case in 2001,” said Baru Bian, a prominent NCR land lawyer.
“This is the land that they must survey and give titles to,” said Baru, who is the chairman of Sarawak PKR, pointing out that the state government has a different definition of customary right lands.
“What I want to hear loud and clear now from the chief minister is he will make an undertaking to the people of Sarawak to survey all NCR land. This is what we want to hear from the state government.
“There should be no political rhetoric. The Dayaks are rebelling,” he said, urging the government to allocate more money as RM20 million is insufficient to carry out survey works.
But there are questions that beg answers: Why did the government suddenly decide to survey all NCR land? Is it a political gimmick to win the hearts and minds of the rural people before the state election?
James Masing, State Land Development Minister, who knows the general thinking of the public, says that the announcement made by Najib is not a political gimmick. It is real, he said.
The BN government knows that the coming election is crucial and it considers the rural areas as its “fixed deposit”. Thus, it is no wonder that it made the promise to survey all NCR land. In the urban constituencies, it has more or less been confirmed that BN is in big trouble.
The natives have already made up their minds, especially those who have suffered so much over the last 10 years. And following rampant abuses of their NCR land, the landowners have realised the gravity of their problems and are united in their stand.
They have banded and formed the NCR Land Owners Association. This association works closely with Suhakam, Sarawak Dayak Iban Association and other NGOs. Together they are prepared to highlight their problems at international forums, including the United Nations.
And the opposition Pakatan Rakyat is certain to use the NCR land issue as its main topic in the rural areas in the coming state election. It has promised landowners that in the event of an opposition victory, NCR land will be returned to the owners. This is what worries Najib.