Hornbill UnleashedAugust 14, 2009
DAYAKS HAVE BEEN SHORT CHANGED UNDER MALAYSIA
Filed under: Native Customary Rights, Politics — hornbillunleashed @ 12:02 AM
Tags: Anak Sarawak Bangsa Malaysia, Human rights, Malaysia Politics, Native Customary Rights, sarawak, save sarawak
By Paul Raja
I have just returned from the court this afternoon, after having a heavy-duty argument with Datuk Fong Joo Chung and Mr Joseph Chioh, both State Legal Counsels with the Sarawak Attorney-General’s Chamber.
I am representing the natives of Uma Apan (Apan longhouses) community, who are among those people affected by the demolition orders issued by the Superintendent of Land & Survey, Kapit Division, last year.
The native community’s application to resist the demolition orders has been before the court since July 2008.
For the past 15 years my legal practice has been defending native communities against Sarawak State government aggression. The State government works hand in glove with the rich and powerful timber companies and now plantation and tree-planting companies. The native communities have always been on the receiving end.
Speaking as one who comes from the native community, the defence of natives’ land rights is challenging, and the task an arduous one.
Often, we are considered aliens amongst our peers, at times a nuisance. There are always those who purposely make us feel uncomfortable and unwelcome. I pity their narrow-mindedness.
A long and painful road
Looking back, we have traveled a long way.
In the 1980s through the 1990s, defenders of native customary land rights were portrayed by the state-controlled media as “anti-government”, “anti-development” and anti-social. These defenders were subjected to all sorts of negative perception.
When I first ventured to do native land cases in the mid-90s, some of my lawyer friends even warned me that I would be blacklisted by the Special Branch of the Police Department. Those were some of the challenges that we faced.
In our early practice, the law on Native Customary Rights (NCR) Lands was still in its infancy. There were only a few cases which we relied on to support our arguments.
Cases from foreign jurisdiction were not easily available. Local cases were few and the concept of NCR was not deliberated thoughtfully.
Through the years, we began to build up our resources, and mount argument after argument. In the forefront were senior lawyers like Mr. Mekanda Singh Sandhu and Baru Bian. Later, when I went into practice, I got involved in similar cases.
Most of the time we lost, but we did not give up. But of course there were times when we pondered hard about our cause. The law on NCR then was not yet developed: the judges guided while galloping with counsels from both sides.
It was an onerous task for native plaintiffs to establish their NCR claims. The might of the State government machinery always overawed the courts and the native claimants. To a certain extent, there was always the firm belief that ‘the state can do no wrong’ and ‘the state is immune in any of its conduct, right or wrong’.
Obstacles on the ground
Moving from the courtroom to the ground, even the very people that we were defending were divided, with some supporting our cause and others opposing angrily. In many cases, we spent a lot of time trying to extricate our clients from the intrigues by the opposing members of the community concerned.
Having fought many cases and having gone through many humiliations in court, we realised that the natives’ land problem is not merely a legal problem. We saw that the root of the problem lies in the law that governs land tenure in Sarawak.
Since the introduction of the Land Code [Cap.81] in 1958, the land rights of the natives have been continuously eroded. Now the natives are in the worst position they have ever been in. Apart from land, they lose out in almost every aspect of life.
Whenever the plights of the natives are highlighted, the so-called Dayak leaders, instead of lending support to the plight of the rural poor, are the first to condemn the whistle-blowers instead.
High hopes for Malaysia hijacked
When Malaysia was established, every citizen of the colony of Sarawak harboured high hopes that their aspirations, their dignity and their happiness would be attained. Dayaks, Malays and Chinese alike had their own hopes.
But along the way, all those hopes have been hijacked by a few individuals from among our own people. Because of these individuals, the majority of Sarawakians are angry, sad, frustrated and disillusioned.
The Dayaks are the worst affected. Their lands, properties, wealth, identity and dignity have been taken away from them. It is undeniable that they form the bottom of the rank of the social strata.
The majority of the Malays are no better off. The last few years have witnessed the emergence of land disputes involving Malay and Kampung Reserve lands. Suits have been filed, not dissimilar to the cases involving the other native communities. The majority of the Chinese have also been sidelined from the business enterprises, which are controlled by only a few big companies.
It is, however, clear that the Dayaks have suffered the most. The oil palm plantation companies, the hydro electric dams, and the Licence to Plant Forests, among others, have taken huge tracts of lands from the Dayaks.
The Dayak Land Economy
The Dayak economy is very simple. On the community scale, the natives need the forest to live. The jungle forms the refuge for the flora and fauna which in turn are the source of livelihood of the people. On the smaller scale, the individual Dayak has his own holdings called temuda, which is in the form of cultivated lands.
Now with the advent of oil palm plantations, dam construction, forest replanting schemes, almost all the Dayaks lands have been obliterated. This is despite the often-repeated propaganda by BN elected representatives, that the government does not take away peoples’ land.
Legal tools to grab land
There are a few laws that are used as tools to take away Dayak lands. Besides the Land Code, there are the Land Custody and Development Authority Ordinance, Sarawak Land Development Board, The Forests (Planted Forests) Rules, 1997, and the Agropolis Ordinance.
Among these, the two most notorious tools are the Land Custody and Development Authority or LCDA (jokingly referred to as the acronym for ‘Let’s Chase Dayaks Away’) law and The Forests (Planted Forests) Rules, 1997.
The LCDA is used to designate certain areas as “development areas”. Most of the time, these areas will affect the native lands. But the native lands are always erroneously and deceptively termed as ‘state land’. These lands are then alienated to certain companies.
These companies can be LCDA partners or individually owned. In most cases, those lands individually owned are sold to a third party, to make a quick buck. These deals normally earn these individuals millions of Ringgit.
The normal price rates for these provisional leases range between RM1,000 per acre to RM3,000 per acre. The areas of these provisional leases range from 1,000 acres to 20,000 acres.
While these huge transactions were taking place in the cities, the people in the villages were sleeping soundly in the longhouse, until a few months or years later. Then they woke to see bulldozers moving onto their lands.
This is the common scenario of land grabs in Sarawak. The main victims are the poor Dayaks. This predicament of the Dayaks community is just one aspect of the many problems they are facing.
Yet the Dayak YBs will not admit these problems, for they expose the YBs as total failures. The YBs become very defensive instead.
Where does our road ahead lead?
Paul Raja is an Advocate and Solicitor in the High Court of Sabah and Sarawak.
DAYAKS HAVE BEEN SHORT CHANGED UNDER MALAYSIA
Filed under: Native Customary Rights, Politics — hornbillunleashed @ 12:02 AM
Tags: Anak Sarawak Bangsa Malaysia, Human rights, Malaysia Politics, Native Customary Rights, sarawak, save sarawak
By Paul Raja
I have just returned from the court this afternoon, after having a heavy-duty argument with Datuk Fong Joo Chung and Mr Joseph Chioh, both State Legal Counsels with the Sarawak Attorney-General’s Chamber.
I am representing the natives of Uma Apan (Apan longhouses) community, who are among those people affected by the demolition orders issued by the Superintendent of Land & Survey, Kapit Division, last year.
The native community’s application to resist the demolition orders has been before the court since July 2008.
For the past 15 years my legal practice has been defending native communities against Sarawak State government aggression. The State government works hand in glove with the rich and powerful timber companies and now plantation and tree-planting companies. The native communities have always been on the receiving end.
Speaking as one who comes from the native community, the defence of natives’ land rights is challenging, and the task an arduous one.
Often, we are considered aliens amongst our peers, at times a nuisance. There are always those who purposely make us feel uncomfortable and unwelcome. I pity their narrow-mindedness.
A long and painful road
Looking back, we have traveled a long way.
In the 1980s through the 1990s, defenders of native customary land rights were portrayed by the state-controlled media as “anti-government”, “anti-development” and anti-social. These defenders were subjected to all sorts of negative perception.
When I first ventured to do native land cases in the mid-90s, some of my lawyer friends even warned me that I would be blacklisted by the Special Branch of the Police Department. Those were some of the challenges that we faced.
In our early practice, the law on Native Customary Rights (NCR) Lands was still in its infancy. There were only a few cases which we relied on to support our arguments.
Cases from foreign jurisdiction were not easily available. Local cases were few and the concept of NCR was not deliberated thoughtfully.
Through the years, we began to build up our resources, and mount argument after argument. In the forefront were senior lawyers like Mr. Mekanda Singh Sandhu and Baru Bian. Later, when I went into practice, I got involved in similar cases.
Most of the time we lost, but we did not give up. But of course there were times when we pondered hard about our cause. The law on NCR then was not yet developed: the judges guided while galloping with counsels from both sides.
It was an onerous task for native plaintiffs to establish their NCR claims. The might of the State government machinery always overawed the courts and the native claimants. To a certain extent, there was always the firm belief that ‘the state can do no wrong’ and ‘the state is immune in any of its conduct, right or wrong’.
Obstacles on the ground
Moving from the courtroom to the ground, even the very people that we were defending were divided, with some supporting our cause and others opposing angrily. In many cases, we spent a lot of time trying to extricate our clients from the intrigues by the opposing members of the community concerned.
Having fought many cases and having gone through many humiliations in court, we realised that the natives’ land problem is not merely a legal problem. We saw that the root of the problem lies in the law that governs land tenure in Sarawak.
Since the introduction of the Land Code [Cap.81] in 1958, the land rights of the natives have been continuously eroded. Now the natives are in the worst position they have ever been in. Apart from land, they lose out in almost every aspect of life.
Whenever the plights of the natives are highlighted, the so-called Dayak leaders, instead of lending support to the plight of the rural poor, are the first to condemn the whistle-blowers instead.
High hopes for Malaysia hijacked
When Malaysia was established, every citizen of the colony of Sarawak harboured high hopes that their aspirations, their dignity and their happiness would be attained. Dayaks, Malays and Chinese alike had their own hopes.
But along the way, all those hopes have been hijacked by a few individuals from among our own people. Because of these individuals, the majority of Sarawakians are angry, sad, frustrated and disillusioned.
The Dayaks are the worst affected. Their lands, properties, wealth, identity and dignity have been taken away from them. It is undeniable that they form the bottom of the rank of the social strata.
The majority of the Malays are no better off. The last few years have witnessed the emergence of land disputes involving Malay and Kampung Reserve lands. Suits have been filed, not dissimilar to the cases involving the other native communities. The majority of the Chinese have also been sidelined from the business enterprises, which are controlled by only a few big companies.
It is, however, clear that the Dayaks have suffered the most. The oil palm plantation companies, the hydro electric dams, and the Licence to Plant Forests, among others, have taken huge tracts of lands from the Dayaks.
The Dayak Land Economy
The Dayak economy is very simple. On the community scale, the natives need the forest to live. The jungle forms the refuge for the flora and fauna which in turn are the source of livelihood of the people. On the smaller scale, the individual Dayak has his own holdings called temuda, which is in the form of cultivated lands.
Now with the advent of oil palm plantations, dam construction, forest replanting schemes, almost all the Dayaks lands have been obliterated. This is despite the often-repeated propaganda by BN elected representatives, that the government does not take away peoples’ land.
Legal tools to grab land
There are a few laws that are used as tools to take away Dayak lands. Besides the Land Code, there are the Land Custody and Development Authority Ordinance, Sarawak Land Development Board, The Forests (Planted Forests) Rules, 1997, and the Agropolis Ordinance.
Among these, the two most notorious tools are the Land Custody and Development Authority or LCDA (jokingly referred to as the acronym for ‘Let’s Chase Dayaks Away’) law and The Forests (Planted Forests) Rules, 1997.
The LCDA is used to designate certain areas as “development areas”. Most of the time, these areas will affect the native lands. But the native lands are always erroneously and deceptively termed as ‘state land’. These lands are then alienated to certain companies.
These companies can be LCDA partners or individually owned. In most cases, those lands individually owned are sold to a third party, to make a quick buck. These deals normally earn these individuals millions of Ringgit.
The normal price rates for these provisional leases range between RM1,000 per acre to RM3,000 per acre. The areas of these provisional leases range from 1,000 acres to 20,000 acres.
While these huge transactions were taking place in the cities, the people in the villages were sleeping soundly in the longhouse, until a few months or years later. Then they woke to see bulldozers moving onto their lands.
This is the common scenario of land grabs in Sarawak. The main victims are the poor Dayaks. This predicament of the Dayaks community is just one aspect of the many problems they are facing.
Yet the Dayak YBs will not admit these problems, for they expose the YBs as total failures. The YBs become very defensive instead.
Where does our road ahead lead?
Paul Raja is an Advocate and Solicitor in the High Court of Sabah and Sarawak.
