Sarawak Chief Minister Abdul Taib Mahmud has responded to humiliating setbacks in Native Customary Rights (NCR) lawsuits by forcing through a motion in the state assembly to change the definition of 'native'.
Yesterday, the first sitting of the state legislature passed the Land Custody and Development Authority (Amendment) Bill 2011, despite resistance from Pakatan Rakyat members, in order to lubricate joint-venture deals to take over NCR land. According to the amended law, any party entering a joint-venture plantation deal with the state-owned LCDA will be designated a 'native'.
Land minister James Masing (right) had admitted the amendment was in response to an embarrassing NCR court case defeat to natives in Pantu.
On February 21, presiding High Court judge Linton Albert found in favour of 12 Iban landowners from Pantu district, in their NCR claim against the authorities. The native plaintiffs had sued the state government and the LCDA, for entering a joint venture oil palm enterprise on 7,000 hectares of land with Tetangga, a private company, sidelining the local NCR landowners.
In a forthright condemnation of the joint venture, Justice Linton Albert stated “the sum total of the rights of the landowners, to put it crudely, and for want of a better word, is zero.”
Taib's government has now passed an amendment stipulating that any company entering into a joint-venture with the LCDA will be declared a 'native', in an attempt to overcome this legal hurdle.
Justice Albert foresaw such legislation in his judgment. He made a somewhat acerbic statement that any executive declaration that the LCDA's partner, Tetangga, could obtain 'native' status retrospectively, by the wave of a legislative wand, would be irrelevant. Invalid arrangements from the beginning, he pointed out, could not be made valid by a subsequent act.
The new amendment to the LCDA Bill will certainly face further challenges in court. The 'legislative bulldozer' approach reflects the uneasiness of Taib's government, faced with a series of high profile losses in NCR court cases.
Pakatan reps defend NCR landowners
Pakatan state assembly representatives made a forceful defence of NCR during the Sarawak state assembly sitting. But the 15 Pakatan representatives were greatly outnumbered by the BN's 55 members.
Twelve DAP and three PKR representatives had joined the state legislature, on the back of an unprecedented 45 percent opposition share of the popular vote, in April's state election. NCR issues and alleged corruption and cronyism were highlighted during the election campaign.
Land issues fall under state jurisdiction, under Malaysia's federation. Taib, the longest-serving state leader in Malaysia's history, has been besieged by lawsuits over NCR claims. He is struggling to rebut well-documented allegations of parceling out large tracts of land to political allies in the logging, mining, plantation and dam construction industries.
These lucrative contracts have sparked conflicts with impoverished native landowners, mainly in rural areas. NCR land rights are guaranteed under the federal constitution and the state Land Code, but Taib and his ministers have passed numerous amendments to state land legislation to quash landowners' claims.
Anger on the ground over the seizure of NCR land has translated into over 200 NCR lawsuits against Taib's government, a sizeable swing in Dayak votes towards Pakatan, and two rural seats for PKR in Ba'Kelalan and Krian.
Two leading NCR lawyers, partners in the same legal firm handling over 100 of the NCR cases, were elected as PKR state assembly representatives: Baru Bian in Ba'Kelalan and See Chee How in Batu Lintang, a seat in Kuching.
Baru (right), head of Sarawak PKR, agreed with Malaysiakini's view that the amendment indicated Taib had not heeded rural voters' anger over NCR disputes.
“Yes, you could say that. But it also means that the government is taking no chances when it comes to development of NCR lands, especially when LCDA engaged agents as their contractors or joint-venture partners in 'developing' NCR lands. These agents can easily be deemed a 'native' to legalise all transactions between the natives and the LCDA's agents or partners under the Land Code.
“(Under) normal circumstances, this would not be possible. This is because to obtain the status of a native is a difficult process.” He pointed out that historically, the status of native customary reserve land under the colonial Brooke administration had to be granted under the authority of the Governor in Council, and was subject to traditional customary law or adat.
Impartial Native Land Commission sought
The PKR leader called for an impartial Native Land Commission, similar to an existing commission in the Philippines, to recognise NCR land and to issue communal titles.
State DAP leader Wong Ho Leng (left) spoke out against the LCDA legislation. “The LCDA Amendment Bill was introduced in the Sarawak state assembly to disallow natives from revoking (an LCDA joint venture) agreement to develop NCR land. I said it is a most draconian law introduced by BN,” he tweeted.
State Deputy Chief Minister Alfred Jabu argued instead that the “DAP suppresses and oppresses the opportunity of NCR landowners from participating in the Sarawak state BN poverty eradication programme.”
PKR assembly representative for Krian, Ali Biju, pointed out NCR land disputes and animosity had been created by logging and plantations. He named four such provisional plantation leases and six timber licences in Krian, awarded to companies working on land claimed under NCR.
“The companies that have been given provisional leases have encroached illegally into NCR lands of the native communities,” he said in his maiden speech.
PKR human rights lawyer See (right) also listed ten separate timber concessions granted throughout the state, some impinging on environmentally protected water catchment zones. “It is blatant contravention of our laws to issue timber concession licences over water catchment areas and known NCR lands,” he emphasised.
See argued, during the sitting, that the people's votes had been diluted.
“Had the democratic principle of 'one constituent, one vote' been practised, the opposition should have won 31 seats in this honourable Dewan…(but) the two-coalition system has now taken shape, and Sarawak has certainly progressed in our democratic process,” he said.
Native landowners can only hope this will, one day, lead to progress in land security.
KERUAH USIT is a human rights activist - 'anak Sarawak, bangsa Malaysia'. This weekly column is an effort to provide a voice for marginalised Malaysians. Keruah Usit can be contacted at firstname.lastname@example.org