Modern Forest and Land Legislation and Native Customary Rights in Sarawak

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:Sahabat Alam Malaysia - Friends of the Earth, Malaysia

Venue: Kuala Lumpur

Date: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.

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;

(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 non-indigenous 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.

 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, 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.

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.

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 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.