Article

Malaysia’s Highest Court upholds indigenous peoples’ customary rights to land

On 5 May 2009, Malaysia’s Federal Court – the highest judiciary – ruled that the indigenous peoples of Sarawak state, a Malaysian state on the island of Borneo, have customary rights over their lands.[1] A panel of three Federal Court judges unanimously ruled that the concept of native customary rights (NCR) applied to the indigenous people’s right over temuda (cultivated land), pulau galau (communal forest) and pemakai menua (territorial domain) and that the state government cannot take away the land from the indigenous peoples without compensation.[2]

This landmark judgement was delivered while hearing a petition filed by the Sarawak government to review its (Federal Court’s) own ruling in a land rights case initiated by one Madehi Salleh. In 2007, Madehi had filed a case against the state government of Sarawak to claim his NCR rights over 6.6 acres of land in Miri. The court ruled in favour of Madehi but the state government moved the Court of Appeal against the lower court’s decision. Then, Madehi filed an application in the Federal Court which ruled in his favour in October 2007. The Federal Court in its ruling recognised the pre-existence of NCR over land before any statute or legislation, in particular the Rajah Order of 1921. It said the reservation of the land under the Rajah’s Order for Sarawak Oilfields Ltd (SOL) did not nullify the NCR over land. Unhappy with the Federal Court’s decision, the Sarawak government filed a review petition before a different bench of the Federal Court to review its own decision. On 5 May 2009 a three-judge bench consisting of the Chief Justice of Sarawak and Sabah, Richard Malanjun, Hashim Yusuf and Zulkifli Ahmad Makinudin dismissed the review application with costs.[3]

i. Consequences of the Federal Court’s judgement

The indigenous peoples have a long history of struggle for justice and native customary rights over their ancestral land. On 12 May 2001, the High Court in Sarawak upheld the native customary rights of the Iban village Rumah Nor and ruled that the Borneo Paper and Pulp Plantation company did not have the right to destroy Rumah Nor’s rainforest.[4] The High Court recognized the native customary land rights over their traditional territory (“pemakai menua”) including the “disputed area”. But in 2005 the Court of Appeal overturned parts of the judgement stating that there was insufficient evidence to prove the “occupation of the disputed area”. Nonetheless, the Court of Appeal recognized the NCR of the indigenous peoples over their lands outside the “disputed area.[5]

Hence, the judgement of the Federal Court of Malaysia dated 5th May 2009 in Madehi Salleh’s case will have positive long term consequences on the restoration of NCR of not only the indigenous peoples of Sarawak state but of entire Malaysia. There are reportedly as many as 203 cases relating to land rights pending in the courts. The cases mainly relate to alleged encroachment into NCR land by government and private actors and complaints of harassment of native peoples to occupy their ancestral land. In most cases, the state government is a defendant.

The land rights of the indigenous peoples of Sarawak state are officially recognized under the Federal Constitution of Malaysia;[6] but the state instead of providing land titles to them, often give licence to the logging and palm oil companies and other business enterprises to exploit the forests and other resources in the indigenous peoples’ ancestral land. In the last 20 years, the government of Sarawak has leased out more than one million hectares of land, majority of which is NCR land, to many private companies and state agencies – mainly for palm oil plantation and logging activities.[7] The community lands have been leased out by the state government without consulting or obtaining the free, prior and informed consent of the indigenous peoples.

So far the government of Sarawak has held the opinion that the lands of the indigenous peoples belonged to the State unless they proved their ownership by producing evidence that they have cultivated their land for many years. As the indigenous peoples such as the Penans and others are hunter-gatherers and grow very little of their food, it is quite difficult for them to prove legal ownership over their ancestral land.[8]

Presently, all cases involving NCR over land have been put on hold until September 2009 to allow the Sarawak government to bring in topography experts to resolve disputed claims by complainants.[9] The 5th May 2009 judgement of the Federal Court is expected to play a critical role while deciding over 200 cases relating to land rights that will come up for hearing from September 2009. The judgement is also expected to open a floodgate for the indigenous peoples for filing litigations for defending their land rights and protecting their resources from illegal/destructive logging by state and private companies.

ii. Palm oil plantation and land grabbing

Malaysia produces 50% of the world’s palm oil, a trade worth billions. By 2010, the Sarawak government expects to double palm oil plantations to 1 million hectares.[10] Palm oil plantation has been associated with land disputes with indigenous peoples. As the state of Sarawak aggressively pursues the expansion of palm oil plantation amid a rising demand for biofuels, more and more lands belonging to the indigenous peoples are being forcibly grabbed.

Many of those affected are impoverished indigenous communities whose ownership of the land is often not recognized by local authorities. There are scores of cases filed in the courts against forcible land acquisition.[11]

Following an on-the-spot investigation about the conditions of the Penans in Sarawak, London-based campaigner Miriam Ross wrote[12] -

“It was terrifying to see the devastation of the Penan’s land, and all the more so to know how quickly it is happening. I went to Penan communities where the loggers have taken so much of the forest that the animals have gone and the Penan have real difficulty finding food.

“Where the forests have already been logged to death, they are being replaced with oil palm plantations for biofuels and other uses. Oil palm is even worse for the Penan than the logging, because the plantations leave no space for them to hunt or gather. Their way of life becomes impossible.

“And this is not all. A series of twelve huge hydroelectric dams is planned for Sarawak, and will submerge the villages of Penan and other indigenous people. The first dam is already under construction, and the Penan in the area have been told they have to leave.”

iii. Destructive logging and human rights violations in Sarawak

The indigenous peoples in Sarawak state are collectively known as Orang Ulu or Dayak and include the Iban, Bidayuh, Kelabit, Berawan and Penan. They constitute around 50% of the population of Sarawak state of 2.3 million people.[13] The state of Sarawak has unleashed a regime of repression against the indigenous peoples. Their socio-economic conditions remained deplorable.

Malaysian logging company, Interhill Enterprise Sdn. Bhd, has been responsible for destruction of the primary forests and livelihood of the Penans due to its destructive logging practices in Sarawak’s Middle Baram region. The company has caused extensive environmental degradation of the tropical rainforests in the Middle Baram region since the late 1980s which included losses of biodiversity, soil erosion, landslides and pollution of Patah and Akah rivers due to its logging activities. The indiscriminate logging practices have made the survival of the Penans difficult as the access to natural resources such as rattan, sago, poison dart trees and medicinal plants has been hampered. Moreover, the Interhill has also little regard for the legitimate Native Customary Rights claims of the local indigenous communities. The lives of Penans living in Long Item, Long Pakan and Ba Abang villages that are located within logging concession T 0339, Interhill’s logging operations area, have been critical.[14]

The indigenous peoples have vehemently carried out campaigns against illegal and destructive logging by timber companies. In September 2008, the government of Sarawak announced that it would no longer recognize elected leaders in some Penan communities.[15] This is largely seen as an attempt to break the Penans’ resistance to illegal logging by deposing headmen opposed to logging companies. The Penans, a nomadic tribe, have been fighting for more than twenty years to stop logging companies destroying the tropical rainforest in which they live. They have erected blockades against logging and in retribution, faced arrests, violence and acute food shortages.

v. Sexual abuse against Penan women by workers of logging companies

As the Penan communities have been struggling to prevent destruction of their ancestral lands by logging firms, their womenfolk are being victimised by timber company workers in the various settlements within the companies’ operation areas. In particular, there have been allegations that the Penan women including schoolgirls in the Middle Baram area of Sarawak were sexually abused “on a regular basis” by the workers hired by Malaysian logging companies Interhill and Samling. Swiss-based NGO, Bruno Manser Fund, which conducted a research on the sexual violence against the Penan women, alleged that the company workers based in logging camps usually frequented, in a drunken condition, in the Penan settlements looking for women. The Penan women were so terrified that they fled into the forests when they heard sound of vehicles approaching. The situation becomes the worst during the school holidays when students return home to spend their vacation.[16]

The young school girls have been more vulnerable to sexual abuse by the company workers who would take advantage of the disadvantaged positions of the Penans. As the schools are far away from the Penan villages, the schoolchildren have to either walk for several hours or take vehicles to reach the schools. But the Penans are poor and cannot afford vehicles for their children. Hence, they depended on the companies’ vehicles to ferry their children to schools. The Penan girls have become vulnerable as the company workers would often arranged the transportation in such a way that schoolgirls had to stay overnight at a logging camp, where they were abused. Bruno Manser Fund further reported that there had been several incidents of pregnancy among the Penan women and girls due to the abuses and that the logging workers also carried arms to intimidate the Penan community.[17] In 2007, a 16-year-old student from Long Kawi, a settlement in the Middle Baram, became pregnant after being raped while returning to her boarding school. The victim was raped in the logging camp when taking transportation provided by companies to go to her school SMK Long Lama.[18]

On 6 October 2008, The Star reported that “interviews conducted in settlements in the Middle Baram area in northern Sarawak, revealed that several students had become victims of rapes by logging workers.[19]
No perpetrator has been brought to justice. The Penan community leaders alleged that while complaints to the company managers did not work, the police also failed to take any action against the perpetrators. In October 2008, the Ministry of Women, Family and Community Development has reportedly set up a task force to investigate allegations of sexual abuse against Penan women and girls in Sarawak.[20] The Royal Malaysian Police is presently investigating into alleged cases of sexual abuse.

But there is little international concern over the continuous struggle waged by the indigenous peoples of Sarawak for survival as a result of exploitation of the indigenous peoples and their resources by the logging companies and other business enterprises in the state of Sarawak. The lack of insensitivity has been poignantly demonstrated by England when it recently conferred honorary Knighthood to Tiong Hiew King, the founder of the Rimbunan Hijau Group which has been responsible for destruction of the livelihood of the Penans in Sarawak by its logging activities.[21]