Media statement by Datuk Dr Jeffrey Kitingan
Sabah State Reform Party (STAR) chief
STAR Sabah’s announce stand against the BN State
Government’s intention to abolish native rights. The native customary rights of
indigenous people are recognized and are to be protected and have been
universally adopted of late by many countries under the United Nations
Declaration of Rights of Indigenous People.
The recent statement by the
Lands and Surveys Director that NCR does not exist after the enforcement of the
Sabah Land Ordinance, 1930 is not unexpected as the present government has
failed to resolve NCR problems in the State.
The
Director cannot be blamed for being used as the mouthpiece of the BN government
and merely echoed the previous statement of the State Attorney
General.
As
can be seen from Pitas to Pensiangan and from Sukau and Kalabakan to Sindumin,
the State government has caused widespread misery and injustice to the local
natives. It is well documented that many
lands have been alienated to companies in the tens of thousands of hectares
while land applications of natives of 10 or 15 acres are not processed for many,
many years.
The
natives have not only lost their NCR and land rights but also their livelihood
to these unscrupulous companies and their inhumane owners. And in many instances, many of these companies
even engaged illegal immigrants and foreign workers to demolish the homes and
destroy the crops of these natives and to chase them from their very own land,
very often, in full view of and sometimes tacit support of the police and
enforcement agencies.
Despite the many warnings and incidents of violence by
these foreigners, it is a matter of time before the real bloodshed will
happen. Yet, the State government has
done little to assist the poor and suffering natives.
In
hindsight, it is not surprising considering that the top 4 officers in land
administration, from the chief executive to the forestry, the lands department
and the top legal officer in the State are helmed by non-natives.
In
a recent posting, the latter 3 were even called the 3 stooges of the power that
be. One wonders what will happen in such
a meeting to discuss NCR matters, where is the voice and conscience of the local
natives?
To
rub salt into the wound, a KDM is only deemed fit to look after animals and
wildlife. And add on the rumours of
people of a certain race waiting in the late afternoons to attend to their land
applications in the Lands Department.
We
leave it to the people to judge on the matter.
On
a more sombre mood, drastic reforms in the land and NCR laws and administration
are urgently needed to protect the natives, who were the original settlers since
time immemorial and long before Sabah formed MALAYSIA with Malaya in
1963.
The
British colonial masters have always respected the native customary rights and
their right to life depending on their land for their livelihood. This legacy can be seen in the administration
of land law and the Sabah Land Ordinance (Cap. 68) that was passed in
1930.
The
British not only deemed it fit to respect NCR but also made numerous provisions
to protect such native rights as can be seen throughout the Land Ordinance.
For
instance, in the definition of “State land” in Section 4, it is expressly
provided that “State land” excludes lands which “are not and may not hereafter
be lawfully occupied by any person…”.
The
word “hereafter” clearly refers to after the enforcement of the Land
Ordinance. Clearly excluded from “State
land” are lands lawfully occupied after the Land Ordinance.
Only natives with a lawful claim to NCR can lawfully
occupy and obtain legitimate ownership of the land. NCR is clearly defined in Section 15. Obviously, a non-native cannot claim for NCR
no matter how long he or she is in occupation as such occupation is not
lawful.
The
definition of “State land” clearly contradicts the statement of the Lands and
Surveys Director that NCR did not exist after the Land Ordinance in 1930. The Director is clearly wrong and
ill-advised.
If
the Director’s statement is correct, there is no necessity for the numerous
provisions on native rights, NCR and procedures to protect such rights. For instance, in Section 13, upon the receipt
of any land application, it is the duty of the government to publish a notice
calling upon any claimant to NCR in such land and an enquiry is required to
establish that no NCR exists on the said land.
Judging from the numerous overlapping claims of NCR and
claims of companies that have been alienated land occupied by natives, it is
obvious that the government has failed to comply with Section 13.
The
Director is also wrong to state that the natives be made to rely on land
applications for their claims to land and that one of the consideration of
natives’ land applications is the basis of NCR such as in Section
15.
In
Section 14, there is no need for any native to submit a land application as what
is required is a claim to NCR which shall be taken down by the headman or the
Collector and shall be decided by the Collector.
This is reiterated in Sections 81 and 82.
It
is wrong for the Director to impose such onerous procedure and conditions before
a native can obtain a native land right.
Judging from the Land Ordinance, it is more of a verification and
identification of the NCR rather than a formal land application. A NCR is a birth right of the
natives.
A
land application by any native to any land which is not occupied or claimed by
him as NCR is a separate issue as any native like any other non-native or
company is entitled to apply for land and be alienated such land. Such a native is not obliged to prove his NCR
rights before his land application to land which is not occupied by him to be
approved and alienated.
To
overcome the furore of the Director’s statement and to calm the anxieties of the
natives, STAR Sabah calls upon the government to respect and restore the rights
of natives to NCR and native lands and prioritize land for all Sabahans based on
STAR’s policy and vision “NCR First, Sabah Land For Sabahans
First”.
In
addition, the government must also carry out administrative reforms in land
administration in the State.
The
claims of the natives to NCR must be de-centralized to the Collector of Land
Revenue (and by extension to the Assistant Collector of Land Revenue as defined
in Section 4 of the Land Ordinance) as provided in Sections 14 and 82. The
government and the Director must obey the Land Ordinance and comply with it
fully.
The
State government should also establish a LAND AND NCR COMMISSION to safeguard
the rights of the natives on NCR and their land rights and to protect the
integrity of the current holders of public office. If not, the government must replace the land
and forestry directors with natives until such time meritocracy is fully
implemented and any Sabahan is able to hold such positions with any adverse
inference.
A
SABAH NATIVE LAND FOUNDATION should also be established to safeguard and protect
native lands and the rights of the natives to their native lands.
If
the government is truly concerned and wished to safeguard the land rights of the
natives, the government should declare areas to be designated as “native
reserves” under Section 78 of the Land Ordinance. If the governments in the Peninsular can
designate lands to be Malay Reserves, this can be replicated in Sabah to
safeguard future generations of natives to native lands.
The
integrity and sincerity of the present government including the BN components
and their native leaders is highly questionable considering that lands can be
set aside for grazing reserves but are not set aside as native reserves. Section 79 clearly provides for land to be set
aside as native reserves for the purpose of providing land for future
cultivation by natives. This provides
security for future generations of natives.
By their actions, the government is treating the natives worse than
cattle, cows and goats.
The
next question that begged to be answered is whether the government is on a
“Ketuanan Melayu” or “Malaya” agenda on behalf of their political
masters.
When Sabah’s founding fathers agreed to the merger with
Malaya, it was clearly spelt out that the indigenous natives of Sabah and
Sarawak would be equal to the Malays in the Peninsular. This is clearly entrenched in Article 153 of
the Federal Constitution and land rights were clearly reserved for state control
as seen in the Federal Constitution, the Batu Sumpah in Keningau and the
separate Land Ordinance in Sabah and Sarawak.
Why
is it now that the government is adopting a policy similar to the National Land
Code, 1965 in Peninsular where native customary rights are not recognized unlike
the Sabah Land Ordinance? In Peninsular,
the poor Orang Asli, the indigenous natives are deprived of their lands and very
often the lands grabs are by the Umno/BN politicians and their
cronies.
In
the present system, the authority and decision of the Director in alienating
lands to anyone under Section 9 of the Land Ordinance cannot even be appealed as
provided in Section 41.
In
Sabah, we must stop the deterioration immediately. If the government feels that there is any
doubt or ambiguity in the Land Ordinance as to the existence of NCR of the
natives, steps must be taken immediately to pass the necessary amendments to the
Land Ordinance and the Sabah State Constitution to specifically recognize and
implement NCR and native rights. This can
be done quite easily as the BN controls 57 of the 60 state seats and for certain
the other 3 opposition members are likely to support such an
amendment.
If
STAR Sabah is part of the government, it will certainly propose such measures to
clearly and unequivocally recognize native land rights and NCR and to prioritize
Sabah’s lands for Sabahans as spelt out in its Land Reforms Masterplan.
It
is wrong for the Government not to give priority to natives and Sabahans in land
alienation. The Director of Land in
January 2012 disclosed that out of 2.1 million hectares of land available for
alienation, the State had already alienated about 1.9 million hectares of which
only 31% was alienated to natives and the other 69% to others.
From the State economical point of view, it does not make
sense for lands to be alienated to outsiders who do not invest their profits
derived from Sabah’s lands and such profits are then taken to the Peninsular and
utilized there to generate further economic growth.
For
instance, FELDA was alienated some 306,000 acres of land in Sabah but very
little benefit has been given to local Sabahans let alone natives. The government-linked Sime Darby owns a 54,278
hectares plantation land in Sabah while 2 other public-listed companies from the
Peninsular owned 107,000 hectares and 40,359 hectares in Sabah
respectively. These 3 companies owned a
total 201,637 hectares excluding Felda’s holding.
The
profits per hectare for the plantations declared by the public companies for
2011 were RM11,075 and RM9,783. Even
assuming the lower of the profits declared, a total profits of RM1.972 billion
were derived from Sabah for the 201,637 hectares and this did not even include
profits from processing activities.
If
the 201,637 hectares were to be distributed 5 hectares to each family, a total
of 40,000 families will each enjoy a profit of RM49,300 per family each year
which excludes labour costs. Imagine what
economic spin-offs and multiplier effects the profits can generate for the Sabah
economy, let alone the eradication of poverty.
A
SABAH LAND TRIBUNAL should also be established to look into, adjudicate and
resolve the numerous land problems and disputes.
The natives should not be made to wait and spend unnecessarily to
litigate their claims for NCR in the civil courts where at the appeal stages,
the judges from outside Sabah, who are not familiar with native land rights and
more familiar with the Peninsular National Land Code, outnumber the local
judges.
STAR Sabah proposed that Land Administration in Sabah be
reformed and be administered as in the Chart below:-
Diagram 1: An
Overview of Land Organizational Reform
As
for communal titles, the government should not rush and give out communal titles
as though it is done for political campaigning in view of the forthcoming
general elections.
They appear nothing more than to appease the anger of the
local natives who will vote against the BN government and their leaders who have
alienated their NCR lands to outside companies who in turn have destroyed their
crops, plants, homes and evicted them from their own land.
Communal titles should only be given additionally as
native reserves where they are occupied.
In the communal titles given, the government has failed to consider the
legitimate claims of NCR by the natives some of whom have been there for several
generations and pending approval of their NCR claims for years, some even
decades.
With these communal titles are issued, the legitimate
claims and NCR ownership of these natives are not only ignored but also
extinguished and cancelled. It is not the
right thing to do against the natives and you can expect the government to be
punished at the next general elections.
In
conclusion, it is clear that the native customary rights and native land rights
need to be clearly recognized and protected.
The reference to Section 88 is misconceived as Section 88 merely
reinforces the fact that after the coming of the Land Ordinance, the system of
registration is to be put in place and it does not extinguish NCR per se but
require new title and new dealings to be on the basis of registration for any
land except land under NCR without documentary title as at the time of the
dealing or registration.
If
the intention of the legislators of the Land Ordinance was to extinguish or
abolish NCR and native land rights, the wordings of the Land Ordinance would
have been very different in form and it would have clearly left out native
customary rights totally.
In
view of the erroneous and misleading statements of the Director of Lands and
Surveys and by the State Attorney General previously, the onus is now on the
State government and its local BN components to prove that it is not planning to
abolish the native land rights and NCR.
Apparently, from the numerous land alienations to
companies overriding the NCR claims of the natives all over the State, it
appears to be the policy of the government to abolish the native land rights and
NCR and not an erroneous mistake by the Director.
The
BN government needs to change the policy which is clearly contrary to the Land
Ordinance.
And
if the BN government does not make the necessary reforms and changes in the land
policy, then it is only right for Sabahans especially the natives to unite and
vote out the Umno/BN government in the coming general elections since the
government is unable to implement and protect the land rights of the
natives.
KUCHING: The fight for recognition of native customary rights (NCR) on land received a shot in the arm following the federal court’s decision on Balare Jabu and others against timber company Merawa Sdn Bhd .
Progressive Party (SAPP) Deputy President Datuk Eric
Majimbun said the statement by the Director of Land and Survey that there were
no more NCR lands after 1930 is tantamount to ignore the rights of our Sabah
natives, 'son of the soil rights' and an attempt to deprive the natives of their
rights.
