Land in the balance

http://thestar.com.my/news/story.asp?file=/2011/3/11/focus/8207863&sec=focus

Friday March 11, 2011

Land in the balance

By DATUK RANITA MOHD HUSSEIN

In the last decade, the indigenous peoples of Malaysia have been driven to unprecedented action on the streets and in the courts by the increasingly blatant takeover of their lands by third parties.

“Whenever there is a conflict between human rights and property rights, human rights must prevail” —Abraham Lincoln.

THE old man cried before the magistrate as he pleaded for the return of his land – land pledged as security to ensure his son’s attendance in court. The son had absconded and the land became liable to forfeit.

The land had been occupied and cultivated by his family for many years; he had surrendered the land title as security for the bond at his son’s urging and his wife’s pleas; and so to confiscate his land now would be to take away his heritage, his home and his only source of income.

The episode gave the young magistrate an early foretaste of the edge of despair that can accompany a claim to land and its subsequent loss.

Malaysia practises the Torrens System of land registration, devised in Australia in 1858.

The law sanctions private ownership, specifying forms of tenure, their benefits and rights. A title serves as a certificate of full, indefeasible, valid ownership.

Yet, in the evolution of land ownership, there was a time when private rights over land were unknown. There remain communities around the world where land rights are regarded as communal rights, as in the case of the indigenous peoples of Malaysia. Such customary tenure was not contemplated in the Torrens System.

The last 10 years have seen relentless action by the indigenous peoples of Malaysia in their fight for land rights. They were driven to unprecedented action on the streets and in the courts by the increasingly blatant takeover of their lands by third parties.

What, then, are the interests of the indigenous people over land?

In The Orang Asli and the UNDRIP: From Rhetoric to Recognition, authors Colin Nicholas, Jenita Engi and Teh Yen Ping say that customary land is “a living entity, with a spirituality and sacredness of its own” for the orang asli of Peninsular Malaysia.

“The land ... provides food, clothing, medicines, fuel and all materials necessary for their existence. The land is also the school house of their children and the resting place of their ancestors. It is the land ... which gives life and meaning to their whole being.

“Such a relationship goes beyond material and economic succour as it is inextricably linked with the orang asli’s ethos on the land. This ethos is described as representing ‘a quality of being and living which is integrated, humane and egalitarian. The attitude is to enjoy the fruits of the here and now without risking the next generation and to ensure continual enjoyment of scarce resources in a situation of relative plenty’.”

In East Malaysia, the land tenure customs of the Kelabit, Iban, and Penan and other native communities are an integral part of their community and their historical, cultural and religious traditions.

Universiti Malaya’s associate professor in law Dr Ramy Bulan says in Legal Perspectives in Native Customary Land Rights in Sarawak that these customs underpin the occupation of their lands, their territorial domains and their connection to their ancestral lands.

Important features include the maintenance of uncultivated jungle within their areas, its use for hunting, gathering food, and commemorating significant events and people.

Is our land system adequate to cater for the needs and requirements of the Indigenous Peoples?

In Peninsular Malaysia, The Aboriginal Peoples Act, 1954, provides for the gazette of aboriginal areas and aboriginal reserves. How­ever, this status can, at any time, be revoked by the Government, sometimes without the knowledge of the orang asli.

To date, only 19,222.15ha out of the 127,698.54ha earmarked as aboriginal areas have been gazetted, note Nicholas, Engi and Teh.

Furthermore, orang asli rights relating to timber, sand, plants and fruits are frequently extracted by non-orang asli parties who encroach, purportedly with the permission of various government agencies.

In Sarawak, the Land Code 1958 provides for the recognition of native customary land. It also allows the indigenous people to claim ownership over lands which they have occupied and have exercised native customary rights (NCR).

However, the provisions of the Land Code and their implementation have not worked in their favour.

The Land Code only recognises the fact of settlement or cultivation as being sufficient occupation of land to enable a native to be issued NCR.

This means that natives who lead a largely nomadic existence are left out of the equation. Even when sufficient occupation is shown, slow and laborious implementation of the law defeats resolution of many claims.

The pre-requirement that claimed land be surveyed prior to issue of title can be a long, arduous and painful exercise.

Conversely, the provision in the law allowing easy grant of leases of unalienated land to third parties if they are within a development area, plus the provision empowering the minister to extinguish native customary rights should the land be required for a public purpose, have been used to grant rights for mining and timber extraction over native lands to disastrous effect.

To resolve their land claims, the indigenous peoples have resorted to the courts as seen in re Nor Nyawai (2006), re Adong (1998, 2005), re Sagong (2002) and re Madeli (2007).

The courts there gave clear recognition to native customs and tradition as evidencing the right of indigenous people over their land. It was also held that non-documentary native title constitutes a property right in and to the land.

Generally, these decisions challenge how Malaysian laws governing land matters and native customary rights have been drafted, construed or implemented.

A year ago, the National Land Council responded with a policy that effectively overrides customary land concepts and existing claims.

It purports to allocate land in peninsular Malaysia, totalling 50,000 hectares, to heads of orang asli households. Titles will not be issued until the land is planted with rubber or oil palm by authorised third parties and the plants reach maturity. Thereafter, the land cannot be transacted for 15 years.

In unveiling the 10th Malaysia Plan, the Prime Minister reiterated “The Government is ... considering to grant land titles to the orang asli and bumiputra of Sabah and Sarawak. This will enable them to benefit from integrated agricultural development programmes through the agropolitan and contract farming approaches.”

The Government’s policy has met with strong opposition from the orang asli who deplore the idea of being given land which already belongs to them, and for not being consulted over an issue that threatens to end their traditional ways.

What alternative is there?

An Asian Development Bank regional study on communal land rights found that the assumption made by many Asian governments that the introduction of private property and large-scale agriculture would improve the national economy and the standard of living of Indigenous Peoples have proved false in Sarawak.

It stated: “A ... land tenure system such as the Ibans’ can be more adaptable, efficient, and productive than a single land tenure system created out of the historical accident of European physiocracy. Thus, even if a government opts for a policy of individual land titles and freehold as the basis of a modern land tenure system, it can still consider how to build the new policy on the well-tested, community-based, traditional tenure systems.”

The question of indigenous peoples’ interests in land is not merely a tenure problem to be slotted within the Torrens System. The question embraces economic, social, cultural and spiritual dimensions that are rooted in basic human rights – not least of all, equality.

Undoubtedly, this approach will underlie Suhakam’s planned national inquiry on customary land issues this year.

As advocated by the Australian Human Rights Commission, “a non-discriminatory approach to protecting indigenous people’s inherent right to land must be adopted. This measures the extent to which the law permits indigenous property rights to be enjoyed against the extent to which the law permits the enjoyment of other property rights by all Australians.”

In the Malaysian context, the extent to which the law permits indigenous property rights to be enjoyed must ensure equal enjoyment of other fundamental rights available to all Malaysians under the Federal Constitution.

A review of current well-meaning government policy and effort is imperative to achieve this balance.

Datuk Ranita Mohd Hussein has served as Chief Parliamentary Draughtsman, adviser to Bank Negara and Suhakam commissioner. She was also a Judicial Commissioner in the High Court of Malaya and a former member of the Permanent Court of Arbitration at The Hague. She is on the Asia Pacific Forum’s Advisory Council of Jurists and is chair of the Securities Industry Dispute Resolution Centre here.