30 OCTOBER 2013
I refer to the widely reported statement made by Dato’ JC Fong in Geneva few days ago on the status of NCR land in Sarawak and the issues related to the same. If the statement is accurate as reported, I am appalled at his blatant attempt to mislead the UN on the situation our indigenous people are facing in Sarawak. He tried to paint a pretty picture of a caring and responsible government putting the rights of the indigenous people above all other concerns but that could not be further from the truth. Why did he not mention the many NCR cases brought against the government?
JC Fong boasted that the government has ‘recognised and protected indigenous people’s rights over land created by their recognized customs and practices’. What he failed to say is that the current government refuses to abide by the ruling of the highest courts in this country relating to the definition of Native Customary Rights (NCR). The Courts have held that NCR lands extend to an area wider than the temuda, to encompass the pemakai menoa and pulau galau but the State is repeatedly showing its ‘contempt of the courts’ ruling by continuing to issue provisional leases and timber licences over such lands and appealing judgments which favour native landowners.
In his book ‘Law on Native Customary Land in Sarawak’, JC Fong wrote that the acquisition of rights to land is by custom or practice recognized by law ie clearing virgin jungle, planting and occupying the land continuously (at 3.16 and 3.18). However, he continues to insist that this custom and practice is confined to temuda only. It is JC Fong’s opinion (and the State) that this is the only ‘recognized customs and practice’ under the laws of Sarawak.
In our two most recent cases heard in the Court of Appeal (Tamit Anjat and Nyutan/Luking), JC Fong persisted in arguing that the pemakai menoa is not considered NCR land, despite the Court having held to the contrary in earlier cases. In these two cases, (Tamit Anjat and Nyutan/Luking at the COA) the Court again held in favour of the native landowners. Obviously JC Fong did not inform the UN’s UPR that the Government is still doing all it can to restrict the claims of the indigenous people; instead he intentionally misled the UN by his rapturous rhapsody on the rosy life of the displaced natives of the land who have been overwhelmingly compensated and their lives uplifted by the ‘caring government’.
Did JC Fong actually say with a straight face that the State’s consultation with the natives conform with acceptable norms and standards, and its efforts at resettlement of the indigenous people has in many areas ‘exceeded relevant international standards’? Perhaps he should try to live with the lucky resettled people for a week before he makes such a ridiculous and pompous statement. If the people really have been so thoroughly consulted and well provided for, why have there been so many protests against the Dams? As we all know, the protest against the Baram Dam continues as we speak.
The 1.5 million hectares of NCR lands is, I believe, the old figure that does not take into account the Court’s decision that NCR includes pemakai menoa. This figure must be referring to temuda created before 1.1.1958 because the Government only recognizes temuda as NCR land. Further, the surveying of land, so proudly trumpeted by JC Fong, has brought dismay to landowners who were unaware of the repercussions of the s 6 perimeter surveys, which the State insists on carrying out, instead of the desired s 18 surveys which provide for individual titles free of any fees and ‘in perpetuity’.
This farce of whitewashing the government’s poor treatment of the indigenous people serves no purpose except that of self-deception, that is now becoming so commonplace with the government of this state and country. If the State Government had hoped to gain some measure of integrity or credibility, the least it could have done was include some neutral legal experts in the Malaysian delegation to address the UN on the views of the opposing side.
In this day and age, it is impossible that the international community is blind and deaf to what is actually happening in Sarawak. We have been attracting adverse publicity for the worst of reasons. I should be thoroughly embarrassed if I were Dato’ JC Fong.
ADUN N70 Ba’ Kelalan