Violations of Sarawak Native Customary Rights

Reproduced below is an email I received from http://www.bobjots.org which I wish to share with visitors to Aki Momogun.

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Hello Joseph,

Having followed your blog for a while, I thought this issue might interest you. I was involved in the initial fact-finding mission about 2 years ago and the work has finally culminated in the report that is found here:

http://www.foodsov.org/resources/rampaging.pdf

The following joint press statement was released on February 23, 2008 by the Sarawak Dayak-Iban Association (SADIA), Tenaganita and the Pesticides Action Network Asia & Pacific (PAN AP):

STOP VIOLATIONS OF NATIVE CUSTOMARY RIGHTS IN SARAWAK
(Launch of “Rampaging the Rainforests” SPEAK OUT, Signature Campaign and Online Petition)

The latest edition of SPEAK OUT entitled ''Rampaging the Rainforests'' was launched at the 'Randau Pemansang' (Forum on Development of Indigenous People) organised by the Sarawak Dayak Iban Association (SADIA) in Bintulu, Sarawak on 21 February 2009. More than a hundred indigenous people and community leaders converged to once again call for a stop to violations of their Native Customary Rights (NCR) and for the oil palm industry and state government to follow the guidelines set by the Roundtable on Sustainable Palm Oil (RSPO) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

“Rampaging the Rainforests” contains the findings and recommendations of an International Fact Finding Mission (IFFM) regarding the land rights of the indigenous peoples of Sarawak. Jointly organised by SADIA, Tenaganita, People’s Coalition on Food Sovereignty (PCFS) and Pesticides Action Network Asia & the Pacific (PAN AP), the IFFM was composed of Justice Pana Chand Jain of Centre for Community Economics and Development Consultants Society (CECOEDECON) from India, Ravadee Prasertcharoensuk of Sustainable Development Foundation (SDF) from Thailand and Debra Erenberg of Rainforest Action Network (RAN) from the United States.

The IFFM investigated instances of NCR violations that have grown to exceed a startling 170 claims. It visited over 19 communities consisting of 70 villages and long houses, met with about 825 people from the north to central and south of Sarawak and looked into increased cases of violence against and harassment of indigenous community leaders. It established through interviews with the people, documents provided by the people and evidences found in the form of graves, fruit trees and cultivated land that the land areas claimed by the Dayaks do fall under their NCR.

The Sarawak Land Code [CAP81] clearly recognises the NCR lands and has defined the elements that give recognition to NCR to land. Further to this the Federal Court decision of Madeli Salleh vs government of Sarawak states very clearly that the customary rights of inhabitants were recognised and accepted by the British crown when it governed Sarawak. It became part of common law. These customary rights therefore are part of common law and thus must be recognised and protected.

Justice Panachand said, “Registration was not a necessary pre-requisite for such holdings to be recognised. The court concluded that the judicial commissioners’ findings (in the earlier hearings) that NCR in Sarawak was only created by Section 66 of the Land Settlement Ordinance, Chapter 27, was erroneous as NCR had pre-existed over the land before any statute or legislation was enacted.” He said further, “The Federal Court has recognised and re-affirmed the pre-existence of NCR via the Madeli case. So I find it very strange and illogical that this historic judgment is not implemented by the executive branch. In other countries, this disrespect would have amounted to a contempt of court.”

However, as Nicholas Mujah, Secretary General of SADIA said, “In many instances, representatives from the oil palm industry, with the assistance of state enforcement agencies and the police deliberately destroy evidences and desecrate graves and cultural artifacts that are used as evidence to claim the land rights of the Dayaks.” Aside from the issue of NCR, the indigenous people have also been experiencing other problems which they shared during the forum.

A leader from Sibu, James Adau said, “The floods have carried pesticides used in the palm oil plantations to our rivers and poisoned our waters. This means that the government is poisoning us.” Moreover, he encouraged all the indigenous peoples to rise up against all injustices “for we have no other choice”.

An Iban, Douglas Alau Tayan shared how they are being marginalised in their own land. He said, “The Ibans are 60 per cent of the population in Sarawak and yet we are identified as ‘others’ in the context of the Malaysian national registration.”

In Kampung Wawasan area, villagers reported that an oil palm company repeatedly sent thugs to pressure them to sell their land. Although the community filed more than 20 reports, the police never came. These clearly indicate that the plantation industry and the state government are acting against the letter and the spirit of the Principles and Criteria of the RSPO.

The land disputes also violate the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) that was adopted by the 61st Session of the United Nations Assembly on 13 September 2007. Article 26 states, “Indigenous peoples have the rights to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or uses, as well as those which they have otherwise occupied.” Further, “States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the custom, traditions and land tenure systems of the indigenous peoples concerned.”

The Dayaks, indigenous peoples of 40 ethnic groups dominantly inhabiting Sarawak, have occupied and cultivated thousands of hectares of land for generations through adat (custom), a body of beliefs, social norms, customary laws and traditional practices. Adat also pertains to the indigenous peoples’ land ownership and control. Each community has its own menoa (territory) and neighboring villages have identified boundaries to these communal territories that include forests, bodies of water, farmlands and other resources.

Today, large oil palm plantation companies backed by the state agencies and in collusion with the local government, threaten the Dayaks’ existence and their NCR. Sarawak has witnessed a highly rapid and aggressive expansion exercise to establish large-scale commercial cultivation of oil palm over the last decade and a half—albeit mostly on indigenous land sequestered through questionable means. This has led to growing conflicts between indigenous peoples and state-owned and private corporations in Sarawak.

Copies of the SPEAK OUT were distributed during the forum and indigenous community leaders have taken them back for a subsequent signature campaign in their respective areas.

An online copy of the SPEAK OUT “Rampaging the Rainforests” can be viewed at http://www.foodsov.org Moreover, to support the online petition for the indigenous people of Sarawak, please sign on at http://www.foodsov.org/html/petition12.php


References:

Nicholas Mujah
Secretary-General
Sarawak Dayak Iban Association (SADIA)
Email: sadiahq@gmail.com

Irene Fernandez
Director
Tenaganita
Email: tenaganita@yahoo.co.uk

Sarojeni V. Rengam
Executive Director
Pesticides Action Network Asia & the Pacific (PAN AP)
Email: panap@panap.net

I understand that similar issues are happening in Sabah as well, albeit on a smaller scale. I leave it to your discretion if you'd like to use your blog to highlight this issue.

Best regards,

--
Bob Kee
a pilgrim on the path of grace
www.bobjots.org

agnus dei, qui tolis peccata mundi, miserere nobis.
agnus dei, qui tolis peccata mundi, dona nobis pacem.