Upholding recognition of native lands

Upholding recognition of native lands 

By: Tan Sri Herman Luping 

It is now the accepted world-wide view, based on common law, that a native is synonymous with the land, the forest, just like the trees are part and parcel of the land.

Indeed, this is the view of all courts in the free world, as more and more marginalised "first persons" or natives asked for the recognition of their native rights to land. This accepted view was mentioned by the Chief Judge of Sabah and Sarawak, Tan Sri Richard Malanjum in his key note address at the symposium held at the University Malaysia Sabah (UMS) recently.

The two-day symposium was jointly organised by the Kadazan Chair of UMS, headed by Associate Professsor, Dr Jacqualine Pugh-Kitingan, the chairman of the organising committee, School of Social Sciences UMS, headed by Associate Professor Hj Inon Shaharuddin Abd. Rahman who was also the co-chairman of the Organising committee, and Pusat Sumbur Adat dan Mediasi Kaum Anak Negeri, Sabah (Pusaka), founded by the CJ of Sabah and Sarawak, Tan Sri Richard Malanjum.

Pusaka is a new organisation with the objective of documenting the traditional customary laws or Adat of the various indigenous societies of Sabah. The Vice-Chancellor, Brig.Gen Professor Datuk Seri Panglima Dr. Kamaruzaman Hj Ampon was also there to deliver his speech on the occasion.

I was happy to be there at the opening ceremony as a representative from Majap ( Sabah's Justice of Peace organisation) representing the Acting president of Majap, Datuk Lawrence Thien, who was unable to attend due to an earlier commitment.

Malanjum, who officiated and also delivered the key-note address at the opening in his capacity as the founder of Pusaka, made many observations on land issues, particularly related to native lands as the root cause of many problems, not only in Malaysia, Sabah and Sarawak but throughout the world because "land is a limited commodity". Native land is very close to my heart. There are only two sure things in life - death and taxes.

Where do we go after death? Back to the land", he answered.

He said natives around the world are asserting their native customary right to lands.

From Down Under Australia, and New Zealand to the north of Canada and the Scandinavian countries, Norway included, India and more, natives are clamoring for the protection and in many cases for the return of their native lands from the government. He also said that government has the fiduciary duty to protect the interests of the natives and their native customary rights to land.

He said natives in Sabah are fast losing their land and many are already displaced from their ancestral lands. He cited the examples of the cluster of displaced persons from Tambunan and Ranau now squatting in an area in Kota Kinabalu, with some seen retrieving thrown away vegetables in garbage bins!

These people had once occupied lands which they thought was theirs by right from time immemorial, but big business interests have deprived them with the land because of corruption and collusion on the part of the "small kerani" in the district office who was charged to look after the interests of native customary rights under section 13 of the Sabah Land Ordinance - not doing their duty as demanded of them!

Richard pointed out that each of the 1.49 million natives in Sabah now have an average of only 0.8 acre of land compared to the 1.81 million non-natives population which have an average of 2.024 acres per person.

He also mentioned that the problem faced by natives in Sabah is being compounded by native lands included under the Forest Management Unit (FMU) adding that from just 8 of the FMU lands checked, there are 1.9 million hectares of native lands included in these. "There were actually more than 8 FMUs signed involving Forest Reserves.

And in some of these forest reserves involved, there are native settlements"-- Why has this happened?"

He said it was possible that before the FMUs were allocated to the big companies, the interests of the natives were not taken into account.

He said there is a great fear that one day natives of Sabah would be landless and homeless.

In the parlance used by Tun Dr Mahathir in his book "Malay Dilemma", the natives would become the "Red Indians" of the country!

The culprits for making this to happen are the officers charged with the duty to protect the interests of the natives. It is also partly due to the government policy (not this present government) of parceling the lands for huge plantations purposes, with the land approved to major companies from Peninsula Malaysia and partly because of the formation of the FMUs.

Some 22 of these FMUs were demarcated during the "Rotation of Chief Ministers" era.

Some of these FMUs have an area covering more than 200,000 acres each. And as the CJ mentioned, in just 8 of these FMUs, some 1.9 million acres of native lands were included in them.

When these FMUs were formulated, I thought then that a major mistake was made - and I still do.

To begin with, the purpose of the forest management policy was to nurture the trees in the jungle to grow for commercial purposes in the future and also to replant to replace the trees cut down.

But this policy was never really implemented for the persons and companies awarded with these FMUs proceeded to cut down what is left of the trees and no replanting has been undertaken.

I also thought that the parceling of these FMUs and awarded to a few persons and companies had placed the control of these forest lands in the hands of a few!

And besides, the interest of the native regarding their native customary right land has not been protected.

There are still more than 40 cases involving native customary rights land pending in the High Court.

Tan Sri Richard made a strong case then for the setting up of native land tribunal in Sabah.

He said the New Zealand experience in this matter could be the guidelines. He said a body like the Waitangi Tribunal in New Zealand would be more flexible and therefore able to settle disputes faster and more efficiently.

The Waitangi Tribunal was established in 1975 as a permanent commission of inquiry charged with making recommendations on claims brought by Maori people relating to actions or omissions of the Crown that breached the promises and provisions of the Treaty of Waitangi signed between all the Maori chiefs of New Zealand and the government of New Zealand representing Queen Victoria, the reigning monarch of the time, in February 6, 1840. In the Treaty of Waitangi 1840, the Maoris gave the Crown rights to govern and to develop British settlements while the Crown guaranteed Maoris full protection of their interests ( to land, water, fish) and status and full citizenship rights. The Waitangi Tribunal of 1975 was enacted to hear grievances brought to it by the Maoris for breaches of their interests.

In fact, the history of New Zealand shows that there were three major wars called "Maori Wars" involving the forces of the occupying colonists (White settlers) and the Maoris, the original natives of the country, before the Treaty of Waitangi was concluded and signed. Over the years, the colonists were seen and accused by the Maoris of breaching the promises made in the Treaty and there were many unhappy episodes of confrontation between Maori activists and forces of the Crown. The setting up of the 1975 Waitangi Tribunal went to some distance to find solutions to the problems raised before it.

As the CJ mentioned, the court (as in Sabah) is not really the correct avenue to hear the native land rights disputes.

The court requires evidence to consider and it is more adversarial in nature, whereas a tribunal or commission would be more conciliatory in its approach.

The latest suggestion by the government of New Zealand was an offer of once only of a 1 billion dollars compensation to all the Maoris and the money to be put in trust for all the Maoris of New Zealand.

This once only offer of 1 billion dollars was made by the National Party government in the 1990s under Mr Jim Bolger as Prime Minister.

I am not sure whether the Maori chiefs or leaders accepted the offer.

Today, Maoris' interests to land, water, lake, air and even fish such the whales in the Kaikura coast in the South Island - are all protected; or they seem to be. Tourists going to the Kaikura coast to see the whales at play, for instance, must hire only Maori owned boats to take them to the whales and I am told that to obtain a fishing license for deep sea fishing in the waters of New Zealand, also requires the approval of the Maori department.

Meanwhile, here in Sabah, the Chief Minister, Datuk Seri Musa Haji Aman was quick to respond to the call for the setting up of the Native Land Tribunal in Sabah. He said his government is always ready to listen to suggestions, especially good ones for the benefits of the people and State.

He said the matter would be given serious consideration.

This is actually the hallmark of Datuk Seri Musa's governance: always ready to listen and act on good advice given by such an imminent like the Chief Judge of Sabah and Sarawak, for the setting up of Native Land Tribunal to help or assist to find solutions to the problems of native land rights, native customary right land.

No doubt, in time, a Cabinet paper would be prepared containing the terms and conditions of the proposed Native Land Tribunal for the consideration of his Cabinet colleagues.