BRIEFING PAPER II
MODERN FOREST AND LAND LEGISLATION AND NATIVE CUSTOMARY RIGHTS IN
SARAWAK
Submission for the European Union delegation for Forest, Law, Governance and
Trade (FLEGT).
Submitted by
Venue
Date
:
:
:
Sahabat Alam Malaysia - Friends of the Earth, Malaysia
Kuala Lumpur
Jan 15, 2007
I INTRODUCTION
In Sarawak, legislation on land and forests directly affects the status and stature of Native
Customary Rights (NCR). Although the NCR is legally recognised, the modern state land and
forest legislative process has been characterised by the progressive circumscription of such
rights by the relevant state statutes Such a trend can in fact be traced back to as early as
1863 during the rule of the Brooke Rajahs (Please see Box 1). This policy was then
continued by the colonial administration and the present Sarawak state government.
Some of the recent legal developments have progressively concentrated the decision-making
process on matters concerning land and forests in the hands of the Minister of Planning and
Resource Management or the senior officers of the state agencies concerned. In some
cases, the legal moves have deliberately relocated the power of the judiciary into the
executive
Equally important, experiences on the ground frequently show that in cases where the NCR
is extinguished or terminated, or in cases when the land is declared as “Development Area”,
the affected people who mostly live far away from administration centres with little access to
state documents or the daily media are rarely informed systematically. Information
disclosure surrounding the removal of their rights and the survey and compensation process
is often clouded in secrecy and the clear chain of accountability along with the appropriate
complaint and compliance mechanisms which the aggrieved could turn to are not thoroughly
explained to them.
In any case, many of such mechanisms for seeking recourse are beset with inadequacies.
For instance, the timeframe for raising objections on the outcome of certain procedures are
unbelievably short and do not take into account the location and financial circumstances of
the people. Such objection mechanisms are also confined to the technical rather than
principal i.e. instead of establishing the appropriate negotiation and space to obtain their
free, prior and informed consent; they are instead devoted to compensation claims per se.
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This paper will thus describe the manner in which the NCR in Sarawak has been
compromised over the years by the state legislature which periodically amends two of the
most important laws governing land and forest matters - the Sarawak Land Code 1958 and
the Forests Ordinance 1953, by continuously introducing more and more aggressive clauses
to limit, create vulnerability or completely revoke the NCR in addition to introducing new
land and forest related legislation which appears to aim for the same effects.
As a result, the legal position of the peoples’ land rights today is at its most fragile in the
history of modern Sarawak.
II MAIN LEGISLATION FOR LAND AND FORESTS
Sarawak Land Code 1958
Today, the legislation which has the provisions to directly define the nature and limits of the
NCR and determine the character of its interaction with the state is the Sarawak Land Code
1958, the state’s main legislation on land matters. The implementation of the Sarawak Land
Code is overseen by the Department of Lands and Surveys.
The Land Code stipulates that NCR can be created through:
(a)
the felling of virgin jungle and the occupation of the land thereby cleared;
(b)
the planting of land with fruit trees;
(c)
the occupation or cultivation of land;
(d)
the use of land of any class for rights of way; or
(e)
any other lawful methods.
However the same law also provides for several ways in which the NCR could be
extinguished and strictly halts the practice of acquiring new NCR after 1958.
In addition, the Land Code defines land into several classes. These classes, as shown below,
reflect the land use and planning patterns and do not provide for the differentiation between
forest areas and non-forest areas and other geographical features.
Mixed Zone Land
Areas where both non-indigenous and indigenous persons are allowed to hold private
titles. Occupation of such land without any document of title is an offence.
Native Area Land
Areas where the indigenous peoples are allowed to hold document of titles and nonindigenous persons are allowed to acquire if they are:
 prospecting for minerals or harvesting forest produce in the areas.
 subjecting themselves under the native system of personal law.
 issued with a permit to occupy the land.
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 registered as the native proprietor to execute dealings “on behalf of” the indigenous
communities which deems the proprietor, including statutory bodies like the Sarawak
Timber Industry Development Corporation (STIDC) as native.
Occupation of such land without any document of title is an offence.
Native Customary Land [NCL]
Land in which the NCR have already been lawfully created by the native communities
prior to January 1, 1958. From time to time, NCL can also be created if the state
gazettes its land into a Native Communal Reserve. Native utilisation of such land can
then be regulated by their customary law, subject to modifications and specifications
which are spelt out by the order, although the creation of such Reserves after 1958 does
not negate the law on the lawful creation of the NCR. NCL can also be created from
Interior Area Land after 1958 if a permit is obtained from the state.
No document of private title is issued for such land but any native in lawful occupation of
such land is deemed to be holding a licence from the state but he or she is not required
to pay any form of land rent to the state.
Government Reserves
State Land which has been gazetted, either under the Land Code or other appropriate
laws, to be used by and reserved for the government for various public purposes,
whether for present times or in the future, whereby the nature of the purpose requires it
to be made unavailable for alienation, for example to serve water supply, conservation,
sewerage, telecommunications and public recreation functions, to name only a few. If a
Reserve is created under the Land Code, the notification of the creation of such land by
the state can be made without stating the purpose of the Reserve. However, a separate
notification can be made later to specify the purpose of the Reserve and notifications
can be also be made on the change of an existing purpose for a given Reserve. If a
forest on State Land is reserved to serve production or conservations purposes, it is also
essentially a Reserve.
Interior Land
Land which is not categorised into other categories. Much of this class of land is in the
interior. However, the law allows for the NCR to be created here after 1958, subject to a
permit from the District Office, in which case, the status of the land would be changed
into Native Customary Land.
In a larger picture, the Land Code stipulates that land for which no document of title has
been issued and all land which subsequent to the issue of a document of title may have
been or may be forfeited or surrendered to or resumed by the government, should be
considered as State Land i.e. it belongs to the state. In this light, Native Customary Land,
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Interior Area Land and Reserved Land are in essence State Land; as the parcels of
unalienated land within Mixed Zone Land and Native Area Land.
However, in the case where a State Land is needed to be reserved to fulfil specific purposes,
whereby the administration of these is neither under the jurisdiction of the Department of
Lands and Surveys nor regulated by the Land Code, other laws will be used to reserve and
administrate such land, and its management is then transferred into the hands of the
appropriate authority.
This is what will ensue if a forest area within the State Land constitution needs to be
reserved as forests in perpetuity, in a state where it can never be alienated, whether to
serve the functions of forest production or forest conservation. In this case, the forestry
laws will be used to gazette such forests into either the Permanent Forest Estate or Totally
Protected Areas. The administration of such forest areas will then be run by the Forests
Department.
III Sarawak Forests Ordinance 1953 and other forestry-related laws
The main legislation governing forests in Sarawak is the Forests Ordinance 1953. This law
divides the Sarawak forests into two broad categories – the Permanent Forest Estate and
State Land Forests, whereby the Forests Department is given more control over the former
than the latter. On the other hand the National Parks and Nature Reserve Ordinance 1998
and the Wild Life Protection Ordinance 1998 provide for the creation Totally Protected Areas
which can comprise National Parks and Nature Reserves; and Wild Life Sanctuaries
respectively.
The size of each legal class of forest is shown in Table 1. The following describes the legal
constitution of the three legal classes of forests in the State.
Permanent Forest Estate (PFE)
The many subcategories of the Permanent Forest Estate can be established over State Land
through a Declaration made by the Minister in the Gazette. Once the decision takes effect,
the areas involved will be placed under the authority of the Forests Department. However,
the phrase Permanent Forests is in fact a misnomer – for most parts of the Permanent
Forests are classified so with the aim to be “protected” to serve the forest needs of the state
in perpetuity.
Under this category, there are further three legal subdivisions, of which only the last one,
which constitutes a negligent portion of the Permanent Forests in totality, addresses the
rights of the indigenous communities to their forests, even if weakly.
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Forest Reserves
Sections 3 to 24 of the Forests Ordinance regulate the establishment of a Forest Reserve –
set aside as a permanent source of timber and other uses for the state.
Entrance into Forest Reserve areas is forbidden, except when a licence is issued for a
specific purpose, including for logging activities. NCR is clearly not allowed to be exercised
here and hunting, gathering and fishing activities by local peoples are strictly prohibited on a
Reserve.
Protected Forests
Sections 25 to 39 of the Forests Ordinance regulate the establishment of Protected Forest.
The terms and procedures of its establishment are similar to that of the Reserves.
Entrance into a Protected Forest is also prohibited unless a licence has been obtained for it,
including those which permit logging to be carried out. Before amendments were made in
2001, the Protected Forest was a category which was more accessible to the natives, in
comparison to Reserves, although similarly, NCR cannot be exercised in these areas.
This is because previously, while Section 36 specified the list of prohibited activities on
Protected Forests, Section 37 contained the list of exceptions to those rules, one of which
was “the exercise of the rights specified in Section 65.” The old Section 65(1) of the
Ordinance expressly allowed the inhabitants of Sarawak, without licence or permit, to cut
and remove from State Land which is not a Forest Reserve, any timber or forest product for
their own domestic use.
However the content of Section 65(1) was revamped in 2001, and today it stipulates that
collection of forest produce other than timber for domestic use can only be done on any
State Land which is not a forest reserve or protected forest. For timber collection, Section
65(1)(a) allows its removal by the people for domestic use with prior written approval from
the Director of Forests.
Communal Forests
Sections 40 to 48 regulate the establishment of Communal Forest, which is the only legal
category which is set aside for the purpose to fulfil the domestic needs for forest products,
game and fish of local communities. These forests can be created at the request of a
community, although the Minister is not obliged to do so following any of the requests.
Once it has been gazetted as a communal forest, all the products and things found within it
will be set aside for the sole (domestic) use of the community. The people will also have the
right to control and maintain these areas in a condition of sustained yield.
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However in 2001, an amendment was made to the law concerning the Communal Forest.
This is the insertion of Section 47(3), which perversely presumes that if a member of
community takes a forest produce, he is then taking it for sale, exchange or direct profit
“unless he can prove to the satisfaction of a court or the Director or any officer authorised
by the Director to investigate an offence under Section 69, that he requires the forest
produce as firewood or for the construction of any boat, furniture or any other household
goods or utensils for the use of himself or his immediate family, and the forest produce was
taken by himself or a member of his family.” This insertion effectively renders the function
of the Communal Forest, in concept and spirit, almost meaningless today.
In any case, the percentage of Communal Forests, which is the only legal category that
effectively affirms native communities’ rights to utilise the forests for their needs as they
have done for centuries, even in the 1960s, constituted only a negligent portion of the PFE
and remained so until today.
State Land Forests (SLF)
These are the remaining forests which are not reserved in perpetuity and can be alienated
and converted to serve other land functions e.g. agriculture. NCR can be exercised here.
However, Section 65(1)(a) allows for any resident of the state, without a licence or permit,
to collect and remove forest produce other than timber for his or her own use on the SLF.
Timber can only be removed, for one’s own use, if a written permission is obtained from the
Forests Department. However, Section 51 also allows the Forests Department to issue
logging licences over the SLF.
Totally Protected Areas (TPAs)
The Forests Department also oversees the implementation of the National Parks and Nature
Reserve Ordinance 1998 and the Wild Life Protection Ordinance 1998, which regulate the
creation of National Parks, Nature Reserves; and Wild Life Sanctuaries.
However, the same disregard for the rights of local communities can be found in the
constitution of the TPAs. In recent years, the advent of TPAs, (areas which function as strict
conservation zones, where activities of local peoples are strictly forbidden), have been
severely criticised by numerous environmental groups as they tend to advocate conservation
works at the expense of local communities. Such artificial delineation in fact tends to
produce disastrous impacts to both the forests and the local communities, who are the
traditional managers of the forests and who have mastered the balance of utilising and
conserving the forests.
IV LEGAL AMBIGUITY OF THE CUSTOMARY
The terminology of such land and forest classes is very important for people who are directly
working on the ground with the communities as the lack of familiarity may induce a person
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into misunderstanding the nature and position of different classes of land, especially when
they involve forested land.
The legal ambiguity on the extent of the NCR is linked to the manner in which the power to
administrate land and forest matters is distributed by the state. The state’s legislation in
principle, divides land and forest administration under the Land Code and Forests Ordinance
respectively, which contradicts the manner in which the collective body of native customary
law unites the stature of the peoples’ rights on cultivated land and forest areas.
In modern legislation, the NCR is recognised, defined and explained by the Land Code,
which does not distinguish forest areas from non-forested areas in any of its land
classification process. At the same time, the Forests Ordinance provides the Forests
Department with the immense power to administrate forest production and conservation
matters. Instead of endeavouring for the two laws to mutually reinforce each other’s
definition of the NCR in order to strengthen them, the state has actually allowed for the
combination of their effects to increase the legal vulnerability of the NCR and create a lack
of clarity on its extent, in particular if the people’s claims fall into the forest areas.
Secondly, the legal validity of NCR claims also often comes into question because the state
has not been diligent in consulting the people to determine the extent of their ancestral
domains and in documenting the locations and land-use patterns within the domain prior to
or shortly after the Land Code came into force. This matter is compounded as time passes
by when the state fails to install an open, transparent and participatory process in its
decision-making procedures.
As a result, the land classes as delineated by the state may conflict with the people’s actual
land claims. This can happen because the state’s land classification may have not been
completely harmonised with the people’s claims on the ground. Thus such land can be
classified as other types of reserves, when in fact NCR have been created therein prior to
1958. Such a case can also come to surface due to the subsequent creation of a
Government Reserve, or even Mixed Zone Land under the Land Code, which does not
specify for the automatic termination of the people’s NCR unless the termination to the
rights has been effected through a separate notification.
Thirdly, the vulnerability of the NCR is also tied to the general reluctance of the state to
recognise the full extent of their territorial domains. Sarawak’s native communities have long
developed a distinct system of land and land use categorisation that not only allots
cultivation land for individual families called temuda, it also includes the larger higher
forests, or the pulau galau, where the rights are exercised communally for members of the
community to carry out hunting and fishing activities and where high-quality wood and other
forest produce are harvested, besides functioning as the village water catchment area.
Although the state has often conceded that the people do have some customary rights on
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land surrounding their longhouse and on nearby cultivated areas, it has consistently
disputed the natives' claims to the higher forest or hutan pemakai menoa. In the absence of
meaningful documentation, when dealing with the extent of NCR claims for compensation
purposes, the state tends to term the entirety of the NCR as “land subject to NCR claims”
and the absence of cultivation is usually used to imply the absence of rights, in direct
contradiction to the people’s customs.
Fourthly, the extinguishment of the NCR to a forest area without proper information
disclosure and compensation process can take place if the forest is gazetted into either a
Forest Reserve or a Protected Forest as specified under the Forests Ordinance.
Vulnerability to the NCR as a whole is effected through provisions in the Land Code which
allows for the rights to be extinguished, both on forest and cultivated areas. Such
extinguishment is usually undertaken if the land needs to be acquired for dam construction,
plantation schemes or other projects. Extinguishment of the rights by the Land Code is often
informed on the affected person(s), although the information disclosure and compensation
process is still beset with practices that are unfair and prejudicial to the people.
However, if such rights are terminated to make way for a Forest Reserve or Protected Forest
as specified under the Forests Ordinance, the state is not obliged to communicate the
change of status of the land in a personal fashion. This may result in Forest Reserves and
the Protected Forests being created on forest areas where the people claim their NCR,
without the people being aware of the process itself.
Under the Ordinance, the creation of such forests is the prerogative of the Minister as long
as the forest is on State Land; and this can well be on existing Native Customary Land or
the Interior Area Land. The minimum legal requirement of the Ordinance on information
disclosure only specifies that following the publication of the Minister’s decision on the
matter in the Gazette, a copy of the notice is to be published in at least one newspaper and
displayed at the relevant District Office. On compensation, the language of the law
perversely implies that the onus of claiming must be initiated by the people themselves and
be submitted to the Regional Forests Officer and their failure to do so does not jeopardise
the extinguishment of their rights for the purpose of the creation of such forests. Such a
method of information disclosure cannot be said to be meaningful since the free, prior and
informed consent of the people is not required and even then, the method of informing is
hardly effective for the urban public let alone people who live in decentralised settlements in
the rural areas.
Similarly, native rights can also be extinguished if the forest concerned is gazetted into a
National Park or a Nature Reserve under the National Parks and Nature Reserves Ordinance
or if it is gazetted into a Wild Life Sanctuary under the Wild Life Protection Ordinance.
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However, in these two cases, in addition to publishing the decision in a newspaper and
displaying it at the District Office, the Minister can also bring the decision to the attention of
the affected people in a manner he thinks fit. The additional provision of informing the
people is presumably drawn to ensure that the native communities would really cease their
activities on wild life hunting and gathering of forest produce in the area.
Finally, the NCR is also often compromised by the fact that the Forests Ordinance still
provides the Forests Department with the jurisdiction to issue logging licences outside of the
gazetted Forest Reserve and Protected Forest i.e. State Land Forests where NCR may have
been created long before 1958, and such rights should be considered to subsist, because
the Forests Ordinance has not been invoked to gazette the forest into production forest,
provided that no extinguishment notification has been served on those rights under the Land
Code.
In all of these cases however, other legal considerations on the matter would also have to
be made. Central to this is the examination of the effects of the modern common laws on
the native customary laws, which essentially begs several important questions. First, unless
such rights under the native law or customs are taken away by the state’s modern common
laws through clear and unambiguous words, can these modern laws, enacted throughout a
considerable length of time, have the effect of extinguishing such pre-existing native rights?
Then, if the native law and rights are considered as to have survived through the enactment
of modern legislation, what is the extent of such rights? In addition, these considerations
would also have to take into account the constitutionality of many matters including the
right to property and livelihood.
V EXTENT OF THE SECURITY OF NATIVE RIGHTS TO THEIR FORESTS
Given all the facts above, we can clearly see now that the only way to determine the legal
worth and usefulness of Sarawak’s forest conservation efforts, which take into account the
rights of its indigenous peoples, is by simply looking at the size of the Communal Forests,
which as shown by Table 1 – did not start with much and continued to decline before finally
disappearing in the Forests Department data by 2000.
However today, the benefits of the Communal Forest themselves have been removed by the
recent amendment which demands the people to be able to prove that they are utilising the
forest strictly for domestic purposes.
If we are to carefully study the three legal and functional classes of forests within the PFE,
and the impacts of the amendments made unto them in recent years, we will realise that in
actual fact, they have lost their distinct characteristics. The prohibited activities applicable to
the Protected Forest are today similar to that of the Forest Reserve, and the functions of the
Communal Forest in serving communities have been severely diluted.
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This is confirmed by the report published by the German international technical cooperation
agency, the GTZ1, which cites,
According to the Forests Department it is the present policy not to
gazette new Communal Forests and the distinction of the PFE into Forest
Reserves, Protected Forests and Communal Forests has lost its
importance, because the right of the local people to collect forest
produce for their own use is no longer restricted to Protected Forests
and Communal Forests today (GTZ 1992: 23).
The priorities of the Sarawak Forests Ordinance 1953 are self-explanatory. While the
Ordinance heavily restricts the activities of the indigenous communities in the Reserve and
Protected Areas and demands that they prove that they are utilising the Communal Forests
for sole domestic purposes, it permits industrial timber extraction on the first two
subcategories of PFE - in addition to forests on State Land.
The only difference between logging activities taking place in the PFE and State Land Forest
is that the Forests Department is better empowered to regulate them in the PFE since they
have direct jurisdiction over them. Although they have the authority to stipulate permissible
limits and prescribe forest management plans to all holders of logging permits – in the
Forest Reserves and Protected Forests, they are empowered to impose a selective felling
system, which lays down the sequence of operations that must be observed by the
companies, and to control and monitor the harvesting activities by enforcing an annual
coupe system, which controls the yield of harvest on an annual basis. On land not included
in the Estate, the Forests Department can only “promote as far as practicable, the thorough
and economical utilisation of forest products” (Sarawak Forest Department 2000).
As mentioned above, after the Land Code was enforced in 1958, the state soon began to
develop progressively aggressive amendments which ease extinguishment and acquisition
processes of land where NCR is claimed, complicate the manner in which the existence of
the rights can be proven and introduce procedural processes to legitimise the finality of the
state’s decisions on the peoples’ land.
Box 1 chronicles the manner in which the communities’ rights have been compromised
within just one generation.
GTZ is Deutsche Gessellschaft fur Technische Zusammenarbeit, Germany’s international technical cooperation agency. In
preparation for joint forestry projects with the Sarawak Forests Department, the agency in May 1992 published a
comprehensive project preparation report which analyses the state of the Sarawak forests and the Sarawak forest
management practices.
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Box 1 – Evolution of Sarawak Land and Forest Legislation
Native Customary Rights and the Land Code 1974 - 1997
1974 – Extinguishment of NCR
Although then the Code had already contained clauses to allow for NCR extinguishment, in
1974, more powerful clauses were introduced. Sections 5(1) and 5(2) provide for the legal
recognition of the NCR and the specification on the methods in which they could have been
created. With these amendments, Sections 5(3), 5(4) and 5(5) are added immediately after
5(1) and 5(2).
The new sections stipulate that NCR extinguishment can now be undertaken for any public
purposes, or to facilitate alienation, and only requires the Minister to notify in the Gazette or
bring the notification of the extinguishment to the affected persons in a manner he deems
necessary, at least six weeks prior to the extinguishment. Although the affected people are
allowed to seek arbitration within three months from the date of the notification, in reality, it
is unlikely that the decision of the Minister could be reversed or be instructed by the court to
be withdrawn2.
In the 1970s, when logging is about to intensify and not much land is needed to be
surrendered to the state for dam-building or plantation development, in comparison to the
1990s, the state chooses to be indifferent in the matter of compensating the people,
presumably because it could still afford to withstand any protests that can ensue as a result
of inadequate compensation amounts.
Thus although the Code stipulates that NCR extinguishment must be compensated with
monetary award or land replacement, the law is allowed to remain ambiguous on the
specification of the value of the required compensation and makes no mention on the
procedures, factors or formulae that must be incorporated into any land assessment process
undertaken for the purpose of compensating communities affected by NCR extinguishment.
On the other hand however, the treatment for the compensation process of other land held
under titles in other land categories is completely different. In such cases where land is
acquired by the state, the procedures, factors and methods that must be incorporated into
the assessment process are provided for in detail by the Land Code.
As a matter of fact, in an earlier Directive issued in 1975 by the State Attorney General, it is
emphasised that the Land Code does not allow for the assessment process of land held
under the NCR to be subjected to the same assessment process for land held under private
Please Hong, E. (1987) Natives of Sarawak Institut Masyarakat: Penang and Bahrin Adeng (1975) ‘Native Customary Land
Rights in Sarawak’ Project Paper (LL.B) Universiti Malaya: Kuala Lumpur.
2
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titles for other land categories (Hong 1987: 55). Such a position is clearly aimed to allow the
state to acquire NCL at a minimum cost, which as late as 1985, along with the Interior Land
Area, still constituted more than 60 percent of the total land areas [Hong (1987) cites Zaidi
K.Z. (1985)] to facilitate its easy acquisition for any projects the state deems fit3.
Since relatively, not much land was needed back then, in comparison to the 1990s when
plantation schemes began to be promoted – the blatant disregard to compensation issues
seemed to be a reflection of the state’s confidence that it could actually get away with
providing the people it had aggrieved, with as little as possible.
1979 – Widening scope of offences and arrest powers
Section 209 is amended to include the erection of building and clearing, ploughing, digging,
enclosing and cultivating activities on any State Land as an offence, in relation to unlawful
occupation of State Land. The amendment also gives officers of the Department of Lands
and Surveys to arrest suspected offenders and conduct eviction, demolition and seizure
exercises, a power which until then could only be exercised by the police.
1988 – Re-entry in case of breach or default
Section 33(1)(a) stipulates that a fine may be imposed if the land is not used consecutively
over a three year period and this land then will be re-classified as State Land if title rights
are not implemented. This amendment is a clear attack on a key component of shifting
agriculture – the practice of leaving land in fallow.
1994 – Broader base for the extinguishment of NCR
The resumption of any land by the government can only be undertaken for specific
purposes. These purposes are defined by Section 46. The purpose introduced through
Section 46(g) is rewritten as “any work or undertaking by any person, corporation or
statutory body, which in the opinion of the Minister is beneficial to the economic or social
development of the State or any part thereof or to the public generally or any class of the
public”, clearly to make way for the Bakun Hydroelectric Project.
1997 – Development Area
Now that timber resources may soon be exhausted, many timber companies are branching
out into plantation development, whether for pulp or oil palm trees. Thus Section 18(a) is
added into the Land Code to facilitate the conversion of the peoples’ land into private
plantation estates. This section above empowers the Sarawak Land Development Board and
the Land Custody Development Authority to use their ordinances to declare an area as a
Development Area and a lease over such land may be issued for a period of not more than
60 years to any corporate body approved by the Minister. In addition to private companies,
Please Hong, E. (1987) Natives of Sarawak Institut Masyarakat: Penang and Zaidi Khaldin Zainie (1985) ‘Land Tenure
System in Sarawak’ Sarawak Gazette July pp 14-17.
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such a lease can also be issued to corporate bodies including those statutory bodies which
are deemed as Native by the Land Code.
On the expiry of the lease, any native whose land has been included in a Development Area
must apply to the Superintendent of Lands and Surveys if they wish to re-establish their
land rights. The Superintendent may, subject to the direction of the Lands and Surveys
Department’s Director, issue such a grant to the people concerned upon such terms and
conditions as he deems fit to impose. In reality, this amendment has the effect of
permanently terminating the peoples’ rights once and for all.
Native Customary Rights and Forests 1979 - 2001
1979
Sections 90 and 90A give wide powers to forestry officers to evict and prosecute natives
who were found trespassing, felling timber or collecting forest produce in a Forest Reserve,
Protected Forest or State Land Forest and to take possession of their properties, crops,
animals, vehicle, tools etc. (Prior to this, such matters were under the sole jurisdiction of the
court.) In executing the above, the forest officers may also call upon other police or forest
officers and none of them shall be liable for any loss, injury or damage caused to any person
or property in carrying out the said functions.
1987
Amendment to Section 90(b) criminalises the action of erecting barricades in logging
concession areas. This allows the people who participate in blockades (in order to stop the
movement of the vehicles of logging companies) to be arrested and tried in court.
1996
Section 65B provides for the issuing of licence for the establishment of plantations, which it
terms “planted forest”.
2001
Insertion of the new Section 47(3) for Communal Forest states that the people shall be
presumed to be taking forest produce for sale, exchange or direct profit unless he can prove
to the satisfaction of a court or the Director of Forests otherwise.
The content of Section 65(1) is revamped to disallow the collection of forest produce, other
than timber, in Protected Forest (such a prohibition already exists for Forest Reserves) even
for the domestic use of native communities. For timber collection, Section 65(1)(a) allows its
removal by the people for domestic use with prior written approval of the Director of
Forests.
Amendments to Section 68 allow for certain offences under the Ordinance, including those
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in contravention of the above Section 65(1), to be regarded as seizable offence within the
meaning of the Criminal Procedure Code. Further, forest officers authorised by the Director
of Forests may without a warrant, arrest any person reasonably suspected or if the person
concerned refuses to give his name and residence, or gives a name and residence which
there is a reason to be believed as false, or if there is reason to believe that he will abscond.
The authorised officers also, if they have reasonable cause to suspect that a forest offence
has been committed, may search any conveyance, building or facility under the control of
the suspect, his agents or servants.
VI OTHER LAWS RISKING THE NCR
Sarawak Forestry Corporation Ordinance 1995
The Sarawak Forestry Corporation Ordinance 1995 is a highly controversial piece of
legislation which was passed by the state without any form of public consultation. Its aim is
to provide for the corporatisation of the functions of the Sarawak Forests Department and
the transfer of these functions to the Sarawak Forestry Corporation (SFC). Severely criticised
by environmental groups, representatives from the opposition parties and unsurprisingly, the
employees of the Forests Department themselves, such a development is without
precedence in the history of the Malaysian forestry sector.
The corporatisation exercise was claimed to have been recommended by the International
Tropical Timber Organisation (ITTO), which supposedly noted that the constraints on the
existing Forests Department was severely affecting the state’s ability to achieve sustainable
forest management. The move was also said to be in line with the trends of forest
management in developed countries today.4
The 1,200-strong Union of Forestry Employees of Sarawak (UFES) was especially vocal in its
opposition to the proposal. UFES claimed that corporatisation process had failed to comply
with the procedures of the Public Service Department and has initiated a legal action on
these grounds. They have also recorded their protest in a memorandum sent to the King via
the Prime Minister's Department, citing job security concerns, among others. Union leaders
had threatened to picket in front of the Department’s divisional offices and on many
occasions did exactly so.5
The SFC however dismissed such concerns, stating that the employees would not be treated
unfairly and would be given several options - from early retirement, employment with the
corporation, out-sourcing of job functions to transfer options into other government
4
Echo of the Rainforest Sarawak Forestry Corporation July 2003
One protest reportedly took place during the launching of the SFC in June 2003. Please see Malaysiakini SFC launched,
Sarawak forestry workers picket, June 9th, 2003. http://www.malaysiakini.com
5
14
departments. As a matter of fact, the authorities heavily promoted the corporatisation
exercise as a move which would benefit the employees through better salary, remuneration
and other forms of employee reward packages.
In June 2003, the SFC was officially launched. A private company wholly owned by the
Sarawak State Government, the SFC is today the principal management company of the
Sarawak Forest Conservation Statutory Body. It proclaims that its aim is to position Sarawak
“at the forefront of sustainable forest management and conservation”.6
In the July 2003 newsletter of the SFC, Echo from the Rainforest, the authorities were quick
to claim that the corporatisation process should not be equated to a privatisation exercise of
the Forests Department as claimed by some parties. Instead, the move should be seen as a
restructuring exercise undertaken to enable the sustainable management of Sarawak forests
in tandem with changes that have taken place in the timber industry. They further stressed
that the Forests Department would not be abolished – the Department would remain but
only the majority of the staff would be gradually transferred to the corporation in phases.
The corporatisation exercise does not in fact call for the complete dissolution of the Forests
Department. Instead, it only seeks to “transfer” the functions of the Department into the
Corporation.
This is achieved through the implementation of Section 4(1) of the Ordinance which
provides for such a process. This section allows the Minister of Planning and Resource
Management by way of a declaration in the Gazette to transfer at a time “specific property,
rights or liabilities of the Government into the Corporation”.
However such a process must also be complemented by the relevant amendments in the
Forests Ordinance 1953 to enable the Forests Department to relinquish some of its authority
to the Corporation and these were carried out in 2003. These amendments enabled the SFC
to undertake its statutory functions and duties in relation to forest laws and their
enforcement, and to generally play its role as an agent of the State Government in
regulating the timber industry in Sarawak. A central feature of this legal transformation is
the provision to allow the Director of Forests, subject to the approval of the Minister, to
delegate to the Chief Executive Officer of the SFC any powers and duties conferred upon
him or her under Part VI of the Ordinance (or any rules made under it), by notification in the
Gazette.
The following are key features of the Corporation.
Power structure
6
http://www.sarawakforestry.com/htm/corporate_profile/who_we_are.htm
15
The Corporation is overseen by a Board of Directors. Its Chairman is appointed by the
State’s Governor.
The appointment of between five and eight members to the Board of Directors is the
prerogative of the Minister, although at least three of them must be officers in the
state’s public service. The Secretary of the Board will be appointed by the Chairman, in
consultation with the Minister. The appointment of these Board Members may be
revoked by the Minister, without any reason.
The management of the Corporation will be headed by a Chief Executive Director with a
Managing Director working directly under him or her.
The Managing Director of the Corporation meanwhile is the Director of Forests himself.
The Corporation is then organised into six key Business Units each headed by its own
General Manager. These units would be responsible to implement the management and
conservation programmes for Sarawak’s forests – including controlling logging and
forestry sector operations and enforcing forestry and environment-related legislation.
Business strategies
Section 3(2) of the Ordinance deems the SFC as “native” as defined by the Land Code.
Acting under this capacity, the SFC will thus be empowered to execute dealings “in
favour of other natives” in the state and can acquire rights and hold land titles over
Native Area Land.
There are clear risks when forest resources are treated as business entities, but the
corporatisation exercise also raises the issue of transparency and public access to its
documents. More importantly, legally, can a public office tasked with regulatory and
enforcement duties be corporatised?
Today allegations have begun to surface that the corporatisation has resulted in the decline
of forest management in Sarawak and an increase in illegal logging activities. A ground
survey by Sahabat Alam Malaysia in December 2006 found possible evidence of
encroachments in Samunsam Wild Life Sanctuary, Maludam National Park and Similajau
National Park.
The move is considered even more damaging by the fact that many of the decision-making
process related to forest management matters in Sarawak is already mired in endless
accusations of non-transparency, non-accountability and of how certain public capacities
have been misused to garner political support. There is no justification for the functions of a
state department which deals with such a problematic area of governance and enforcement
to be corporatised.
16
The Land Surveyors Ordinance 2001
Since the late 1990s, numerous communities and sympathetic groups have been joining
efforts to systematically map the land claimed by the former by utilising user-friendly and
mobile digital satellite technology – the Global Positioning Systems (GPS) and Geographic
Information Systems (GIS) – which are widely accessible today.
The result of such exercises is high-quality maps which could have never been produced by
non-professional parties merely two decade ago. Impressive in their precision, they contain
scientifically accurate information on the extent and content of the peoples’ land. With
accuracy, comes reliability and the maps soon became an important tool in the court of law.
In May 2001, the usefulness of community maps was victoriously demonstrated when the
maps were accepted as evidence in the landmark Rumah Nor/Luang court case, which was a
representative action brought by two Iban communities from Bintulu against Borneo Pulp
Plantation, which had been issued titles to two parcels of land in the people’s traditional
territory; Borneo Pulp and Paper which was the sublessee of the land; and the Bintulu
Superintendent of Lands and Surveys who issued the titles. In their legal action, the people
asserted that they had acquired NCR over certain parts of the land and that Borneo Pulp and
Paper had trespassed and damaged the disputed areas.
In his judgment, Judge Ian Chin ruled in favour of the Plaintiffs, holding that the people are
entitled to exercise NCR over the disputed areas. The basis of his judgment is his in-depth
and detailed definition of NCR that extends not only to the longhouse areas and the
cultivated land around them but also to include areas in the higher forest used by the people
to hunt, fish and obtain forest products.
The learned Judge then granted an injunction against the two companies and declared that
the titles issued to Borneo Pulp Plantation which included the disputed areas as void. He
also expected that the Bintulu Superintendent of Lands and Surveys to take the necessary
steps to rectify the titles so as to exclude the disputed areas from the grant.
Barely six months later, in November 2001, the Land Surveyors Ordinance was legislated.
One clear function of this new law is to criminalise community mapping.
Section 20 of the Ordinance bars any party from accepting any cadastral land surveys or
survey plans, including community maps, unless they have been approved by the Director of
the Department of Lands and Surveys. This simply implies that even the courts are not
allowed to make a decision over the admissibility of mapping or survey evidence conducted
by community efforts as had been done in the Rumah Nor case and other cases.
17
In essence, this section usurps the functions of the judiciary and transfers it to the
aforementioned Director since the Director will be the sole authority who can determine
which maps are legally valid, even for their use in courts as evidence.
This disturbs the proper process of law by potentially depriving the people who attempt to
seek the affirmation of their land rights through the legal process from tendering in the key
evidence to their claims – community-made maps – even if such maps are technically sound.
The Ordinance in effect allows the Department of Lands and Surveys, operating as the
Board of Land Surveyors, to be the judge who will decide on the admissibility of one’s
evidence in a court of law.
Meanwhile, Section 23 criminalises anyone who is not a licensed surveyor and attempts to
make a survey plan or map. Upon conviction, such a person will be liable to a fine not
exceeding RM50,000 or to imprisonment not exceeding three years or to both for each
offence.
This is made possible by the creation of the Board of Land Surveyors as spelt out in the
Ordinance, to regulate the activities of land surveyors and states that only licensed
surveyors can make most types of maps.
This law not only endows the Board with the absolute power to decide who is a certified
land surveyor and who is not, it also empowers the Board to turn away licensed applicants
without explanation and revoke a certified surveyor's licence at any time. The ambiguity
renders that even trained mappers, who possess the necessary professional degrees
recognised by the Board, may simply be denied from ever becoming licensed surveyors
without any concrete reasons.
The members of this Board are senior officials from Sarawak's Department of Lands and
Surveys with the Director of the Department acting as the Chair.
In effect, this indirectly allows the concerned Department to criminalise even the people’s
attempt to put together their key evidence for use in a court of law.
The government knows only too well that most communities cannot afford to pay for a
licensed surveyor to map their boundaries, if in fact surveyors will be willing to risk taking on
such jobs at all in the wake of this ruling.
Finally, when the impacts of the two Sections are combined, we will see that they are even
able to render useless the effort of hiring a licensed surveyor to map one’s land for the
purpose of a court process. This is because, even when a licensed surveyor is willing to take
on the job to map for a native community, at the end of the day, the map will still have to
18
be approved by the Director of the Department of Lands and Surveyors before it can be
used in a court of law.
This law is truly without precedent, both in Malaysia and around the world. Peninsular
Malaysia for instance has a Board of Land Surveyors, but there are no provisions there to
restrict community mapping. Clearly the aim of the Ordinance is to ensure that communities
will be increasingly powerless to oppose the claims of logging, oil palm and other companies
on their land.
Logging and the Sarawak EIA process
The controversial law governing the Environmental Impact Assessment (EIA) in Sarawak
was enforced in 1994 amidst the fierce opposition against the 2,400 MW Bakun
Hydroelectric Project. After the enforcement of Natural Resources and Environment
Ordinance 1994 (NREO) in Sarawak which takes precedence over its federal counterpart, the
Environmental Quality Act, the EIA process of certain projects in Sarawak is placed under
the authority of the Sarawak state government.
The most significant difference between the Federal and the Sarawak legislation is that the
latter only requires public participation in the EIA process if the project proponent so
desires.
In addition, there are also several other weaknesses in SNREO and the regulations made
under it, especially those that concern logging. Amongst the types of projects which require
an EIA in Sarawak, the following subsections are those which apply to logging activities,
although the latter does so only indirectly.
11A(1)(c) – the carrying out of logging operations in forest areas which have been
previously been logged or in respect whereof coupes have been previously been
declared to have been closed by the Director of Forests under the provisions of the
Forests Ordinance; and
11A(1)(g) – activities which may cause pollution of inland waters of the state or
endanger marine or aquatic life, organism or plants in inland waters, or pollution of the
air, or erosion of the banks of any rivers, watershed or the foreshores and fisheries.
The First Schedule of the Natural Resources and Environment (Prescribed Activities) Order
1994, a subsidiary legislation of SNREO, further elaborates that logging activity will require
mandatory EIA only if it is going to fall into:
(i)
(ii)
areas exceeding 500 hectares; and
areas declared to be a water catchment area under the Water Ordinance 2000.
19
Our first criticism against the EIA law in Sarawak will obviously be on the way it perversely
puts limitation to the law by categorising forests into logged-over areas and virgin areas,
something which is not found in the Federal EIA law. It is certainly illogical to demand an
environmental assessment for the logging of secondary forests but not untouched pristine
forests.
Further, the breaking up of project area into package sizes less than 500 hectares to avoid
having to conduct an EIA is always a possible strategy for project proponents from a host of
commercial development schemes. Licence holders also obviously have the option of
packaging logging coupes into blocks of less than 500 hectares each and operate them
under different subsidiary companies.
Although the latter subsection does make a mention on projects that affect water resources,
the First Schedule of the Prescribed Activities fails to mention logging under the list of
activities that are categorised as having the potential to pollute inland water or affect
sources of water supply.
Therefore the legal requirement of EIA for logging in Sarawak is fairly narrow, citing
mandatory EIA only if one, the size of the proposed area is above 500 hectares and if the
area has been previously logged over and two, if the area falls under gazetted catchment
areas.
VII CONCLUSION
It can be seen now how modern legal legislation in Sarawak has been actively undermining
the Dayak’s customary claims to their land. The Sarawak Land Code 1958 and the Forests
Ordinance 1953 have complementary functions in weakening the peoples’ NCR.
While the Land Code focuses on curbing the creation of new rights after 1958 - permanently
confining the people into their existing domains without the ability to freely extend their
cultivated land into the adjacent forests and freely migrating to new area, in addition to
creating ambiguity and vulnerability to existing rights; the Forests Ordinance weakens their
right to their higher forests by granting the Forests Department with the authority to
regulate the use of all forest areas.
It is hoped that the explanation above will give the reader a better understanding on the
legal complexity of the land rights’ issues in Sarawak. Central to the debate is the conflict
between the peoples’ traditional system designed to protect the interests of the majority and
the modern legal system which is designed to support corporate, industrial and large scale
agriculture activities and the interests of the powerful minority.
20
Table 1
Year
1968
1984
1991
1995
2000
Permanent Forest Estate
Reserve
000 ha %
647
7
848
9
854 10
756
9
Protected
000 ha
%
2,410 26
2,429 25
3,638 42
3,614 43
5,240 (52 %)
Communal
000 ha
%
30
0
5.6
0
5.6
0
4.9
0
State Land
Forests
Totally
Protected
Areas
000 ha
%
000 ha
%
6,345 (67 %)
6,241 (66 % )
3,929 45
290
3
3,743 45
289
3
4,300 43
500
5
TOTAL
FOREST
AREAS
000 ha
9,432
9,524
8,717
8,407
10,040
Sources:
All figures are attributed to the Sarawak Forests Department.
1.
2.
3.
4.
By the year 2000, the Sarawak Forests Department’s Annual Report, for
unknown reasons, has ceased to produce the detailed breakdown of the
Permanent Forest Estate.
In 1968 and 1984, size of Totally Forested Areas and State Land Forests were
merged.
Figures from 1968 and 1984 were originally published in km2.
Calculation on percentages was brought to the closest round number.
21
%
100
100
100
100
100