How to steal native land

COMMENT I was invited by an Iban pastor to visit some remote Iban villagers in Sarawak recently to help them in a land dispute.

They told me a Chinese contractor had promised to help them develop an oil palm project but did not do anything else after taking out the timber on 1,400 acres of their land earmarked for the project. 

So they want to kick this guy out and find someone else to do the job.

I was shown the project agreement. Bad news. They had signed away their heritage - native customary rights - land unknowingly to this man.

The so-called agreement prepared and executed by a native lawyer, allowed his company not only to take all their timber for free but also for 1,200 acres of their NCR land to be transferred to him.

In return he promised to plant 200 acres of oil palm for them within a specified time.

If they failed to transfer the land, they will have to pay him RM5 million as compensation to him for clearing their land and removing their timber for himself. But there's nothing in the agreement to penalise him if he did not plant the 200 acres for them which he has not done so thus far.

Of course, the so-called agreement was written in English and they were not told it was an agreement nor what terms it contained.

 Gawai gifts

This is what happened. The Chinese businessman living in a town about three hours away sent his Bidayuh wife to befriend someone in the village who had passed himself off as one of the three tuai rumah, or headmen.

There are three Christian longhouses in the village comprising 63 pintus or households.

At the last Gawai harvest festival, the Chinese guy sent "Gawai gifts" of RM300 for each household or RM18,900 in total through his wife and her associates in the village.

In return, they were told to put their thumbprints to a stack of legal document as acknowledgement they had each received the money thinking that it was a receipt.

The lawyer attested he had witnessed these thumbprints even though he was not present.

In the process they had also signed away the full power of attorney to the guy's Bidayuh wife. She in turn has re-assigned this absolute authority over to her Chinese husband's company.

In law, they said to have self-extinguished or abolished the rights to their NCR land. But that's clearly in breach of the law as NCR land rights cannot be assigned to a non-native individual or company.

Bad government land policies and bad court judgments are also not helpful to prevent such land thefts.

A case in point is the recent apex Federal Court judgment against two groups of native people in Sarawak suing the Sarawak Government over the loss of their lands for the construction of the Bakun hydro-Electric Dam and a pulpwood mill.

A three-man panel led by Chief Justice Zaki Azmi (left), who has just retired, unanimously dismissed their appeal for reinstatement of their civil suit for a full trial before the High Court which had earlier summarily thrown out their case on a question of law.

The natives argued that the state's acquisition of their NCR land as provided for under the Sarawak Land Code violated their fundamental rights under the federal constitution.

Zaki and Chief Judge of Sabah and Sarawak Richard Malanjum refused to answer a question of law which challenged the constitutionality of the abolishment of Native Customary Rights (NCR) on lands because the issue was not properly argued before them.

However, Federal Court judge Md Raus Sharif did give an opinion but it was against the natives.

Waste of money and time

In his judgment, Zaki said it would be a waste of money and time to send the case back for trial because many of the natives have accepted compensation from the State Government.

He said if the case was re-sent for full trial, the findings of the High Court would be purely academic because more than 10 years had lapsed since their NCR over the land was extinguished.

Malanjum, in his judgment, said there was no question of returning the disputed land to the natives because the land was now under water upon completion of the Bakun Dam.

"Hence, on the facts and circumstances of these two cases, it serves no purpose to answer the question posed," he said.

Their lawyer, Baru Bian (right), who is also the newly elected Ba'Kelalan assemblyperson, said, "We have addressed the issue of the unconstitutionality of the land grab. I personally think they were evading the practical problem (on a point of law)."

Law professor Abdul Aziz Bari described the two top judges' action, in not answering the constitutionality issue, as an abdication of their oath of office which they took before the Agong.

Back to the Iban villagers.

After listening to the pastor, they are considering going to the court to nullify the agreement they had signed under duress.

Their case may take ten years and all the way to the apex court, which is very expensive. They don't stand a chance.

Another piece of NCR land is about to be extinguished in the meantime. Natives are fated to remain natives unless something changes.

BOB TEOH is a retired journalist and faith-based writer. He is author of the book 'Allah - More Than Just a Word' (2010).