Thursday, April 23, 2015

DUN APR 2015: BARU BIAN'S DEBATE ON THE FORESTS BILL 2015


DEBATE ON FORESTS BILL 2015.

Datuk Amar Speaker,

Thank you for allowing me the opportunity to participate in the debate on the Forests Bill, 2015.

·      Introduction

In the Explanatory Statement to the said Bill, it is stated; “This Bill seeks to provide for the protection and management of forests in Sarawak and to regulate the taking of forest produce and for matters connected therewith, and to repeal and replace the Forests Ordinance [Cap. 126 (1958 Ed)].”

Datuk Amar Speaker, I totally agree that we must have a very clear and exhaustive forests law to protect and manage our forests not only for our selves but also for the generations to come. Forests undeniably are one of the most important assets and natural resources of the State of Sarawak. The forests of Sarawak are not only important for us Sarawakians but it is more so for the world at large. Sarawak forests are part and parcel of the so-called Borneo rainforests, an ancient and unique biosphere with a vast number of native species of fauna and flora and an indigenous culture that has adapted to it. So it was not by a coincidence that it was precisely in Sarawak in 1855 that the naturalist and explorer Alfred Russel Wallace gained fundamental insights into the evolution of the species in parallel to Charles Darwin. Borneo’s biodiversity belongs among the greatest natural treasures on earth and considered by many a world’s natural heritage. Therefore while we are concerned with the “protection and management of forests in Sarawak and to regulate the taking of forest produce and for matters connected therewith” we must not forget the right of the forests dwellers or the natives that live in and off the forests whose rights are directly affected by this Bill. Indeed as the Minister had said, the present Forests Ordinance (Cap. 126) 1958 is an old law and as such I would expect that the new Bill should also incorporate latest development in the law in particular NCR of the natives of Sarawak.

·      Part III: Forest Reserves, Protected Forests and Communal Forests.

Datuk Amar Speaker, I noticed that there is not much difference in the present Forests Ordinance on the constitution of Forests Reserves, Protected Forests and Communal Forests except that the Bill combines both the Forests Reserves and Protected Forests provisions, which I totally agree should be the case. However, I wish to highlight again the same problem which I raised in the last DUN sitting in November 2014 pertaining to section 5(3) of the Land Code i.e., the issue of the publication of the Gazette notification on the extinguishment of NCR by the Minister which shall be “(i) Published in the Gazette and one newspaper circulating in Sarawak; and (ii) Exhibit at the notice board of the DO for the area where the land, over which such rights are to be extinguished is situate…” being insufficient to bring proper notification to the natives affected by such extinguishment and therefore section 5(3) be amended. Sadly, my proposal was not accepted.

Datuk Amar Speaker, today I wish to reiterate my concern pertaining to a similar problem with the issue of publication of the Gazette notification in constituting FR & PF under section 8, the Proclamation of the FR & PF under section 18 and the extinguishment of subsisting rights under section 22 of the Bill which provides that such constitution, proclamation and extinguishment be “published in at least one newspaper circulating in Sarawak or in such medium as circumstances may permit, and displayed at any place or at the District Office” (see sections 8(2), 18(1) and 22(2) respectively).

Datuk Amar Speaker, the plain and obvious fact is that the natives in the ulu or rural Sarawak do not read the Government Gazette or read the newspaper. I assure you Mr. Speaker, no Gazette or newspaper reaches the rural areas of Sarawak. What more to say the natives in rural Sarawak, even most Honourable Members of this august House for that matter do not read the Government Gazette and may miss reading some newspapers.

Secondly, to be “published in at least one newspaper circulating in Sarawak or in such medium as circumstances may permit, and displayed at any place or at the District Office” I respectfully submit Mr. Speaker, is nonsensical and impractical in the context of the rural natives. How often does the native come down to the District Office? Maybe once a year just to renew his gun licence or to apply for his children’s birth Certificates or I.Cs. Even if he comes down to the District Office, how do you expect him to read what is on the Notice Board? Well if he can read; very well and fine. But if he is illiterate like many of our relatives, they are finished. Because the section requires him to lodge his claim for compensation within 60 days (for the constituting of FR & PF under section 8 failing which a native is “deemed to have abandoned or waived such right or privilege and shall not be entitled to any payment of compensation”) and 30 days for extinguishment of subsisting rights under section 22 (3) for the native to inform the Regional Forests Officer “in writing of the nature and extent of the exercise or enjoyment by him of the subsisting rights or privileges which are intended to be extinguished.”

Datuk Amar Speaker, at this juncture may I respectfully ask the Minister to consider amending section 8(2), 18(1) and 22(2) of the Bill to include further that such notice for the “constitution”, “proclamation” and “extinguishment” “be exhibited at the “door” or “bilik” of the village Chief or Ketua Kampung or Tuai Rumah where the said land is located”.

Datuk Amar Speaker, on the Proclamation of the FR & PF under section 18 of the Bill, it is important that the natives be aware of the creation of the said FR & PF to ensure that no breach of section 26 of the Bill be committed by any person. Therefore the said proclamation must be physically served, not through the ‘deemed served’ process.

Datuk Amar Speaker, I propose that whenever a FR or PF is created, as far as possible, NCR should not be extinguished but instead such right be recognized, admitted and allowed to subsist. And then you give some of the rights to protect, manage the FR and PF to the natives with clear instructions to them that this is done for their own good and sustenance and the good of the world at large. This would include the operation of section 25(2) of the Bill, which allows the inclusion in a FR or PF of any alienated land including native land alienated with titles.

Datuk Amar Speaker, my comments on Chapter 2 which pertains to the creation of a Communal Forests would be the same, in particular section 31(2) on the publication of the notification not only to be displayed at the District Office where the Communal Forests would be constituted but must also be displayed on the door of the Headmen of the Longhouses affected.

·      Rights & Privileges Prior to 1 January 1954.

Datuk Amar Speaker, I wish refer to section 10 of the Bill, which reads:

“The rights or privileges that may be claimed in an area to be constituted a forest reserve or protected forest shall be only those rights or privileges which have been enjoyed or exercised by or accrued to a native or his forefathers or a native community for an uninterrupted period beginning from a date prior to 1st January 1954 to the date of the notification referred to in section 8.”

Datuk Amar Speaker, the rights and privileges mentioned in this section I submit refers to Native Customary Rights over land and the forests. In the Court of Appeal case of Kerajaan Negeri Selangor & Ors v. Sagong Tasi & Ors [2005] 4 CLJ 169, their Lordships adopted the decisions of other jurisdictions where under common law the indigenous people, “…had the right to use its water, to use its land for grazing and hunting and to exploit its natural resources, above and beneath the surface” which is equivalent to our pemakai menua and pulau galau rights for the Dayaks and the cari makan land rights for the Malays in Sarawak.[1] Section 10 of the Bill is inconsistent or in total contradiction to section 2 of our present Land Code where Native Customary Land is defined amongst other things as “land in which customary rights whether communal or otherwise have lawfully been created prior to the 1st day of January 1958 and still subsist as such.”

Datuk Amar Speaker, numerous decisions in our courts had accepted the cut off line to prove claims of NCR as to prior to the 1st day of January 1958 following this definition under section 2 of the Sarawak Land Code. Now with this section 10 bringing the cut off date to an earlier date (four years backward) would absolutely prejudice the natives. Even with the 1st day of January 1958 cut off date we have an uphill task to prove our NCR claims, bringing it backward four years into time and history would make the effort more dire and challenging; bearing in mind that documentary proof for NCR claims is almost nil. The laws must be consistent and for this reason section 10 of the Bill must be amended to be consistent with section 2 of the Sarawak Land Code.

·      Special Provisions For Planted Forests (sections 65 to 70)

Datuk Amar Speaker, this appears to be a new section not included in the present Forests Ordinance. I do support the steps taken by the Government to replant our fast depleting forests, which is in fact a consequence of our own folly and short sightedness. But nevertheless I have observed through the years that the re-planting of the forest estate has so far mainly involved the use of imported and exotic species such as oil palm and trees such as Acacia mangium, Kaya ivorensis, Eucalyptus etc. None of these species, which have been planted in such large areas as monocultures, are native to Sarawak and Borneo and will undoubtedly cause long term and damaging effects to our environment and economy. I would suggest that the Government take steps to begin planting local species that are indeed native to Sarawak.

Datuk Amar Speaker, the Enforcement and Miscellaneous Parts are commendable and I have no comment to make except to state that section 109, which provides for the legal protection of “informer” in any legal proceedings is applauded.

With these comments Mr. Speaker let me state it here; for my part and my colleagues from Keadilan we are afraid we will abstain from supporting this Bill if these provisions are not amended as proposed.

Thank you for your indulgence Mr. Speaker.


22nd day of April 2015

BARU BIAN
ADUN N. 70,
BA’KELALAN



[1] Chaskalson CJ, in Alextor Ltd v. Richtersveld Community [2003] 12 BCLR 130 at p. 189 of Sagong Tasi’s report.

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