Rights of Indigenous People Must Be Protected

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.