The cases had been filed by the natives against the government of Sarawak and an oil palm company that planned to establish an oil palm plantation on native lands.
Lawyer See Chee How of the Kuching-based law office Messrs. Baru Bian announced that High Court Judge Datuk David Wong delivered two favorable decisions in favor of a native Iban and a Malay community in Sarawak.
Sarawak natives listen to their lawyers explain the High Court's ruling affirming their native customary land rights. (Photo courtesy Bruno Manser Fund)
In both cases, Judge Wong declared that the local communities have native customary rights over land unlawfully claimed as state land by the Sarawak State government.
In one of the cases, the Court declared that the customary practice of Malays must be given the force of law, which is a landmark decision.
See Chee How called the rulings "a great victory for the people" and said that it was "a historic day for Sarawak's native landowners."
The Iban plaintiffs had filed a suit in 2001 against the oil palm company Ladang Sawit Bintulu and four other defendants, including the state government, seeking a declaration of native customary rights over their land.
They claimed that the provisional lease issued in 1996 to oil palm company Ladang Sawit Bintulu Sdn Bhd had wrongly included their native customary land.
They argued that their native customary rights over the land had never been extinguished and therefore, the issuance of the provisional lease was illegal.
In granting the Iban plaintiffs their rights to the land, the court ruled that the provisional lease over the 1,214 hectare disputed area was null and void.
The court ordered the oil palm company to leave the disputed area, excise it from the lease and return it to the Ibans.
The Swiss-based Bruno Manser Fund, which supports the Sarawak natives in their struggle to preserve their lands from development said, "One of the crucial questions will be if the Sarawak State government will respect these court decisions."
The ruling comes just two days after the Malaysian police destroyed the house of Iban leader Nor Nyawai and 24 other homes at the native village of Sungai Sekabai. This community had won a similar land rights litigation in 2001.
Malaysian police wrecked the homes of these men in the village of Sungai Sekabai. (Photo courtesy Bruno Manser Fund)
Sarawak natives are outraged by the police action and have launched a new advocacy group, the Native Rights Action Front, lawyers Abun Sui and Harrison Ngau announced today.
The new organization is composed of groups, networks and individual native people from communities throughout Sarawak.
"In view of the continued and persistent atrocities, barbarious and inhuman action of the Sarawak State Government against the marginalized groups, particularly the natives or indigenous people," the lawyers said NATRAF would "fight and defend the rights of the natives," particularly to ancestral lands.
The new group appealed to Sarawak natives to stand up to defend "our birth right and source of life which is our ancestral land."
In particular, the group called on the population to vote out current the Sarawak government under Chief Minister Taib Mahmud in the upcoming state election.
"Our forefathers were prepared to take all risk and many of them even sacrificed their very life to protect our people and our ancestral land", the group stated today. "The sacred responsibility to do so is now upon us the present generation who had inherited what they had done and sacrificed for us."
While the court rulings are victories for the native plaintiffs, in another sense the native peoples have lost their original cultural ways in the process of claiming land ownership and fighting to defend it in court.
"For all Dayak peoples of Borneo, the concept of private ownership of land did not exist," wrote Dr. Wade Davis, a Canadian anthropologist and National Geographic explorer in residence in the 1990 book, "The Penan, Community in the Rainforest."
"In the agricultural societies customary law dictated that the community as a whole controlled the resource base," wrote Davis. "Individual proprietary rights were automatically granted to those who worked the land, provided they fulfilled the incumbent ritual and ecological obligations."
Penan village and boat in Malaysia's Mulu National Park (Photo by Jean-Sebastian Choinard)
"This principle of land stewardship is enshrined in the traditional law or adat, a concept that has moral, legal, and religious implications," Davis wrote.
"The subversion of this philosophy, the imposition of a foreign notion of land tenure, and the wresting of control of the land from the indigenous peoples are three dominant themes that have molded Sarawak history since the time of the British," who gave Malaysia its independence in 1957.
As a Penan elder told Davis, "The land is sacred; it belongs to the countless numbers who are dead, the few who are living, and the multitudes of those yet to be born. How can the government say that all untitled land 'belongs to itself,' when there had been people using the land even before the government itself existed?"
Nevertheless, use of the courts to protect their land rights is essential now as more development is planned for native lands in Malaysian Borneo.
On January 11 in Kuala Lumpur, Malaysia and China signed an agreement to carry out a controversial energy masterplan that involves the displacement of thousands of Borneo natives. According to the "Financial Times," the plan involves the construction of several mega-dams and mining of large coal deposits and is likely to require the relocation of some 608,000 natives who live in the Sarawak rainforest.
The deal between the Malaysian Government and the China State Grid Corporation was witnessed by the Malaysian Prime Minister Najib Tun Razak and Sarawak Chief Minister Mahmud. According to the Malaysian government, the plan could result in projects worth US$11 billion of Chinese investment.
The Bruno Manser Fund says the project is being developed "under a cloud of secrecy" and calls it the "Sarawak Corridor of Corruption."
"Construction companies linked to the Chief Minister Mahmud's family interests will be among the main beneficiaries of the new energy development plans," the Swiss advocacy group said in a January 13 statement.
Sarawak opposition politician and attorney Baru Bian has called the incomplete multi-billion dollar Bakun Dam a "monument of corruption" and said he views the new dam plans as a "pretext for extuingishing native rights in the name of a public purpose."
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